                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A13-2142

                          Great Western Industrial Park, LLC,
                                       Relator,

                                           vs.

                                  Randolph Township,
                                     Respondent

                                Filed September 8, 2014
                                        Reversed
                                    Peterson, Judge

                                  Randolph Township
                                  Resolution No. 92013

Ann Evangeline Kennedy, Nilsson Brandt, P.A., Minneapolis, Minnesota (for relator)

Jessica Elizabeth Schwie, Jardine Logan & O’Brien, Lake Elmo, Minnesota (for
respondent)

      Considered and decided by Peterson, Presiding Judge; Schellhas, Judge; and

Huspeni, Judge.*

                                    SYLLABUS

      Minn. Stat. § 366.012 (2012) does not authorize a town to impose a service charge

for a governmental service provided by the town; it provides a method for collecting a

service charge that a town is otherwise authorized to impose.




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

PETERSON, Judge

       After respondent township denied a conditional-use-permit application submitted

by an applicant with an option to buy relator’s property and the applicant failed to pay the

expenses incurred by the township in processing the application, the township passed a

resolution under Minn. Stat. § 366.012 that certified the expenses to the county auditor as

an unpaid service charge to be collected with relator’s property taxes. In this certiorari

appeal, relator argues that respondent misapplied Minn. Stat. § 366.012. We reverse.

                                           FACTS

       Recovery Technology Solutions, LLC (RTS) had an option to buy land from

relator Great Western Industrial Park, LLC (Great Western).            RTS submitted an

application to respondent Randolph Township for a conditional-use permit (CUP) to use

the land as the site for a facility for recycling asphalt shingles. The township concluded

that the proposed facility was inconsistent with a township ordinance that prohibited the

accumulation, storage, or processing of waste or recyclable materials and denied the

application.

       After denying the CUP application, the township sent a letter to RTS stating, “As

agreed to, [RTS] shall reimburse the Township for all out of pocket expenses incurred in

the conditional application review.” Expenses totaled $31,666.41, including more than

$28,000 for legal and consulting fees. RTS objected to the expenses as unreasonable and

asserted that it was not liable for the expenses.




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       The township apparently did not make any further effort to collect the unpaid

expenses from RTS. Instead, the township wrote a letter to Great Western, which stated:

                     On November 6, 2012, [RTS] filed an application with
              Randolph Township for a conditional use permit . . . . That
              application was ultimately denied by the Township.
              However, in processing the application, Randolph Township
              incurred $31,666.41 in legal, planning, engineering,
              publication and Town Board expenses. To date, RTS has not
              paid these charges.

                     . . . This letter is intended to serve as notice that the
              Township will consider certifying the amount of unpaid
              invoices as well as any corresponding interest, late charges,
              recording charges and attorney’s fees to the County Auditor
              at its next meeting pursuant to Minnesota Statutes Section
              § 366.012. This will result in charges of $31,666.41 plus
              interest at 5% per year (commencing on the date the
              Township adopts the certification resolution, likely to be
              September 17, 2013), late charges, recording charges and
              attorney’s fees . . . which will be payable with the 2014
              property taxes.

The township adopted the certification resolution on September 17, 2013. This certiorari

appeal followed.

                                          ISSUE

       Does Minn. Stat. § 366.012 authorize Randolph Township to certify the unpaid

CUP-application expenses to the county auditor for collection from Great Western with

its property taxes?

                                       ANALYSIS

       Absent a right of review provided by statute or appellate rule, certiorari is the

exclusive method to review a municipality’s quasi-judicial decision. Cnty. of Washington

v. City of Oak Park Heights, 818 N.W.2d 533, 539 (Minn. 2012). A municipality’s


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decision may be modified or reversed if the municipality made an error of law. Montella

v. City of Ottertail, 633 N.W.2d 86, 88 (Minn. App. 2001). “The party seeking reversal

has the burden of demonstrating error.” Id.

      The township argues that it was authorized under Minn. Stat. § 366.012 to certify

the unpaid CUP-application expenses to the county auditor for collection from Great

Western with its property taxes. Statutory interpretation presents a question of law,

which we review de novo. Halvorson v. Cnty. of Anoka, 780 N.W.2d 385, 389 (Minn.

App. 2010).

              The first step in statutory interpretation is to determine
              whether the statute’s language, on its face, is ambiguous. In
              determining whether a statute is ambiguous, we will construe
              the statute’s words and phrases according to their plain and
              ordinary meaning. A statute is only ambiguous if its language
              is subject to more than one reasonable interpretation. . . .
              When we conclude that a statute is unambiguous, our role is
              to enforce the language of the statute and not explore the
              spirit or purpose of the law.

Christianson v. Henke, 831 N.W.2d 532, 536-37 (Minn. 2013) (quotations and citations

omitted).

      Minn. Stat. § 366.012 states:

                     If a town is authorized to impose a service charge for a
              governmental service provided by the town, the town board
              may certify to the county auditor of the county in which the
              recipient of the services owns real property, on or before
              October 15 for each year, any unpaid service charges which
              shall then be collected together with property taxes levied
              against the property.

      Under the plain and unambiguous language of section 366.012, a town board may

certify unpaid service charges only if the town “is authorized to impose a service charge


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for a governmental service provided by the town.” Section 366.012 does not authorize a

town to impose a service charge for a governmental service provided by the town; it

creates a method for collecting a service charge that a town is otherwise authorized to

impose.

         The township argues that it is authorized to impose a service charge under Minn.

Stat. § 462.353, subd. 4(a) (2012), which states:

                         A municipality may prescribe fees sufficient to defray
                 the costs incurred by it in reviewing, investigating, and
                 administering an application for an amendment to an official
                 control established pursuant to sections 462.351 to 462.364
                 [governing municipal planning and development] or an
                 application for a permit or other approval required under an
                 official control established pursuant to those sections. Except
                 as provided in subdivision 4a,[1] fees as prescribed must be
                 by ordinance. Fees must be fair, reasonable, and
                 proportionate and have a nexus to the actual cost of the
                 service for which the fee is imposed.

(emphasis added); see also Minn. Stat. § 462.3595, subds. 1-2 (2012) (allowing

designation of conditional uses and setting forth procedure for approval of CUP

applications).

         The township’s argument fails to recognize that Minn. Stat. § 462.353, subd. 4(a),

requires that any prescribed fee “must be by ordinance.” Our review of the township’s

zoning and fee ordinances has revealed no provision that permits the township to impose

a fee on a property owner when a CUP application is denied and the CUP applicant fails

to pay the costs incurred by the township in processing the application. The township

relies on a section in the fee ordinance that requires that a $300 nonrefundable fee and a

1
    The exception in subdivision 4a does not apply to this case.

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minimum $1,200 escrow payment be submitted with a CUP application. Randolph

Township, Minn., Ordinance no. 2011-02, § 3 (2012). That section further states:

              Any escrow fund that is depleted in the application review
              must be replaced in equal amount prior to action on the
              application and any balance due will require full payment as a
              condition of any approval and receipt of payment prior to the
              commencement of any activity authorized in the approval.

Id.

       Under the plain language of the ordinance, the township may collect additional

escrow funds before acting on a CUP application, and, if an amount remains due, the

township may require payment as a condition of approving the CUP. But, when neither

of these opportunities to collect additional escrow funds is used, the ordinance does not

authorize the township to impose a service charge on the owner of the property for which

the CUP was sought.

       Citing Am. Bank of St. Paul v. City of Minneapolis, 802 N.W.2d 781, 787-88

(Minn. App. 2011), the township argues that, under its general police power, it was

authorized to certify the unpaid CUP-application expenses as a property-tax assessment

under section 366.012. Am. Bank is not on point. It did not involve a challenge of the

municipality’s authority to impose a charge; it involved a special assessment for the costs

of removing a nuisance, and the issue on appeal was whether the amount of the

assessment was reasonable, not whether the municipality had authority to levy the special

assessment. Id. Am. Bank does not support the position that a township may use its

general police power to impose a service charge against a property owner when a CUP




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application is denied and the CUP applicant, who is not the property owner, fails to pay

the expenses incurred by the township in processing the application.

                                      DECISION

       Because the township was not authorized to impose a service charge against Great

Western for the expenses incurred by the township in processing RTS’s CUP application,

we reverse the certification resolution.

       Reversed.




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