                          This opinion will be unpublished and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
                                     A15-1912

                                     County of Isanti,
                                      Respondent,

                                            vs.

                  Keith Allen Kiefer, defendant and third party plaintiff,
                                        Appellant,

                                            vs.

                                  City of Ramsey, et al.,
                                 Third Party Defendants.

                                 Filed August 1, 2016
                   Affirmed in part, reversed in part, and remanded
                                     Larkin, Judge

                               Isanti County District Court
                                 File No. 30-CV-11-589


Jeffrey R. Edblad, Isanti County Attorney, Timothy C. Nelson, Assistant County Attorney,
Cambridge, Minnesota (for respondent)

Erick G. Kaardal, Mohrman, Kaardal & Erickson, P.A., Minneapolis, Minnesota (for
appellant)


         Considered and decided by Johnson, Presiding Judge; Ross, Judge; and Larkin,

Judge.
                         UNPUBLISHED OPINION

LARKIN, Judge

       Following a bench trial on respondent county’s complaint alleging violations of its

solid-waste and zoning ordinances, the district court ordered appellant to remove certain

items that were stored outdoors on his property and rejected his constitutional takings

claim. Appellant challenges the district court’s order, arguing that the outdoor storage does

not violate the county’s solid-waste ordinance and that it constitutes a permissible

preexisting nonconforming use. Appellant also argues that the county’s misapplication of

the solid-waste and zoning ordinances resulted in a regulatory taking. We conclude that

appellant’s outdoor storage does not violate the solid-waste ordinance. And although we

affirm the district court’s conclusion that the outdoor storage is not a use that is currently

permitted under the county’s zoning ordinance, because the district court’s ruling on

appellant’s takings claim is based on its erroneous conclusion regarding application of the

solid-waste ordinance and because the district court did not determine whether the storage

is a permissible preexisting nonconforming use, we reverse in part and remand for further

proceedings.

                                          FACTS

       Respondent County of Isanti sued appellant Keith Allen Kiefer, alleging that he had

violated the Isanti County solid-waste and zoning ordinances by storing several items

outdoors on his property, which was zoned for agricultural/residential use. The items

included unlicensed vehicles, piles of scrap metal, tin, old furniture, old building material,

lumber, old windows, old plumbing fixtures, old sinks, a semitrailer container, old pipes,


                                              2
a mobile home, and other miscellaneous debris. The county requested an order authorizing

it to remove the items from Kiefer’s property and to assess the costs of the removal against

Kiefer. Kiefer counterclaimed, asserting an unconstitutional taking by the county. The

case was tried to the district court, and the court found the relevant facts to be as follows.

       At the time of trial, Kiefer had occupied 52.94 acres of property in Wyanett

Township, Isanti County, since 1992. He had owned the property since at least 1996. The

property is currently zoned for agricultural/residential use, but it was zoned solely for

agricultural use when Kiefer purchased it.

       In April 2008, Holly Nelson, Isanti County’s compliance and environmental

technician, received a complaint from a citizen regarding vehicles on Kiefer’s property.

Nelson inspected the property and found vehicles, vehicle parts, scrap iron, and other

miscellaneous items on the property. Between May and September, Nelson sent three

letters to Kiefer informing him that the condition of his property violated Isanti County’s

solid-waste and zoning ordinances and directing him to bring the property into compliance

with the ordinances. Between May and October, Nelson inspected the property three times

and observed that Kiefer had not removed the items.

       Nelson inspected the property five additional times between October 2008 and July

2014. The items remained on Kiefer’s property. Nelson photographed the items on

Kiefer’s property, including a mobile home, licensed and unlicensed vehicles, a semitrailer,

and miscellaneous personal property including a tank, wiring, plastic, an engine block,

metal, an old tire rim, a rusted handsaw, two hot water heaters, a sod roller, a large metal

box, a disassembled plastic storage shed, a small wooden box containing logs, a rubber


                                              3
tarp, scrap lumber, a shovel with no handle, an old grate, a steering wheel, household

coolers, an unidentified part, old machinery, shelving, a can, an old lawn mower deck,

piping, steel rods, posts, old furniture, a rusted metal equipment rack, a dolly, a sink,

pallets, an electric motor, tractor tires, a broken door panel, and PVC gutter materials. All

of the items were in significant disrepair, and most of them were visible from the road.

       The district court concluded that the presence of the items, with the exception of the

licensed vehicles, wooden box, mobile home and semitrailer, violated Isanti County’s

solid-waste ordinance. The district court also concluded that the presence of the items,

with the exceptions noted above, violated Isanti County’s zoning ordinance because the

outdoor storage of those items on Kiefer’s property did not fall within the uses that were

currently permitted under the zoning ordinance. Lastly, the district court concluded that

the county’s enforcement of its ordinances did not result in an unconstitutional taking.

       The district court entered judgment against Kiefer and ordered him to remove the

violative items within 60 days. The district court authorized the county to remove the items

and to assess the removal costs against Kiefer if he did not comply with the order. Kiefer

moved for amended findings and to stay enforcement of the judgment. The district court

denied Kiefer’s motion for amended findings, but it stayed enforcement of the judgment

pending this appeal.

                                     DECISION

                                             I.

       Kiefer argues that Isanti County’s solid-waste ordinance does not prohibit the

outdoor storage of the unlicensed vehicles and miscellaneous items on his property. “We


                                             4
review a district court’s findings of fact in a bench trial for clear error, and the district

court’s legal conclusions de novo.” Slattengren & Sons Props., LLC v. RTS River Bluff,

LLC, 805 N.W.2d 279, 281 (Minn. App. 2011) (citations omitted), review granted (Minn.

Dec. 13, 2011) and appeal dismissed (Minn. Mar. 7, 2012). The interpretation and

application of an ordinance is a question of law that we review de novo. Cannon v.

Minneapolis Police Dep’t, 783 N.W.2d 182, 192 (Minn. App. 2010).

       “The rules governing statutory interpretation are applicable to the interpretation of

. . . ordinances.” Id. at 192-93. “Therefore, when construing an ordinance, we first

determine whether the language is reasonably subject to more than one interpretation. If

the language is unambiguous, we must give effect to the unambiguous text . . . .” Id. at

193 (citation omitted). A statute is ambiguous when its language is susceptible to more

than one reasonable interpretation. City of Brainerd v. Brainerd Invs. P’ship, 827 N.W.2d

752, 757 (Minn. 2013).

       The preamble to the Isanti County Solid Waste Ordinance states that it is an

ordinance

              authorizing and providing for County Solid Waste
              Management, establishing powers and duties in connection
              therewith, establishing standards and requirements for solid
              waste management operations within the County of Isanti,
              [and] requiring a license for establishment and use of a solid
              waste management operation . . . in purpose and object to
              promote health, welfare and safety of the public and protect
              resources of water, air and land.

       The ordinance provides that “[n]o person shall cause, permit, or allow land or

property under his control to be used for solid waste management purposes, except at an



                                             5
operation for which a license has been granted by the County Board, unless otherwise

provided by this ordinance.” Isanti County, Minn., Solid Waste Ordinance § II, subd. 1

(2005). The ordinance further provides that:

              Solid waste shall not be stored on public or private property for
              more than two (2) weeks without the written approval of the
              Solid Waste Officer. Nonputrescible wastes suitable for
              recycling shall not be stored on public or private property in a
              manner which creates a nuisance, blight, or health hazard.

Id. at § IV, subd. 4 (2005).

       Because the district court did not find that the unlicensed vehicles and miscellaneous

items are “suitable for recycling,” the county did not establish that the storage of the items

is prohibited under the solid-waste ordinance’s nonputrescible-waste clause.              The

remaining relevant prohibition under the ordinance applies if the unlicensed vehicles and

miscellaneous items fall within the definition of “solid waste.” “Solid waste management”

means “the storage, collection, or removal of solid waste from or on public or private

property, its transportation to intermediate or final disposal facilities or its final disposal

methods approved by the Agency.” Id. at § I, subd. 31 (2005). And “solid waste” means

“garbage, refuse, sludge from a water supply treatment plant or air contaminant treatment

facility, or other discarded waste materials and sludges, in solid, semi-solid, liquid or

contained gaseous form, resulting from industrial, commercial, mining, or agricultural

operations, or from community activities . . . .” Id. at § I, subd. 29 (2005). Because the

last phrase of the solid-waste definition modifies all of the preceding terms, we focus our

analysis on that phrase.




                                              6
         The last phrase states that the solid waste results “from industrial, commercial,

mining, or agricultural operations, or from community activities.” Id. The district court

concluded that the items on Kiefer’s property satisfy this category because they “are clearly

manufactured or, in the case of lumber, agricultural, items.”1 Kiefer argues that “[i]f we

are to accept the logic of the district court, then a product such as a new chair, a new car, a

new table, a new lamp, or a new shovel is solid waste at the moment of manufacturing.”

Kiefer contends that the definition of solid waste includes only the “non-usable material

from the creation of the products” or “the excess not used to create the product—not the

product itself as the district court suggests.” The county argues that we should adopt the

district court’s reasoning, noting that it could not take the district court’s logic to the

extreme suggested by Kiefer because the solid-waste ordinance only applies to discarded

items.

         Kiefer’s argument is the only reasonable interpretation of the solid-waste definition

for three reasons. First, when we read Isanti County’s solid-waste ordinance as a whole,

as we must, it is obvious that the ordinance is meant to apply to conventional solid-waste-

management operations, and not merely outdoor storage in general. See Am. Family Ins.

Grp. v. Schroedl, 616 N.W.2d 273, 277 (Minn. 2000) (stating that an appellate court is to

“read and construe a statute as a whole”). For example, the ordinance provides for

licensing of solid-waste-management operations and grants powers to a solid-waste officer.

Isanti County, Minn., Solid Waste Ordinance §§ II-III (2005). It also regulates the


1
 The district court did not find that any of the items on Kiefer’s property resulted from
“community activities.”

                                               7
collection and transportation of solid waste, solid-waste disposal facilities, incineration and

energy recovery, intermediate solid-waste disposal facilities, recycling facilities, and the

termination of solid-waste operations. Id. at §§ V-IX, XI (2005). None of these regulations

appear to describe the outdoor storage on Kiefer’s property.

       Second, the ordinance does not distinguish between indoor and outdoor storage in

prohibiting the storage of solid waste on public or private property for more than two

weeks. See id. at § IV, subd. 4. As a result, defining solid waste to include every item that

is “clearly manufactured” results in an unworkably broad definition and unreasonably

broad regulation. Such an approach could bring common household items that are

dysfunctional or no longer serve their intended purpose—such as an irreparable television

or an outdated computer—within the definition of solid waste. We cannot imagine a

reasonable basis to prohibit a landowner from storing such items indoors on his property

for more than two weeks.

       And third, restricting indoor and outdoor storage of all finished products under the

solid-waste ordinance simply because the products were manufactured in an industrial or

commercial operation goes much farther than necessary to advance the stated purpose of

the ordinance, which is to “promote [the] health, welfare and safety of the public and

protect resources of water, air and land.” See id. at preamble (2005); see also Frank’s

Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 609 (Minn. 1980) (“A zoning

ordinance must always be considered in light of its underlying policy.”).

       We recognize that the solid-waste ordinance is not a zoning ordinance, but we are

mindful that when construing ordinances that restrict land use, we “must give weight to the


                                              8
interpretation that, while still within the confines of the term, is least restrictive upon the

rights of the property owner to use his land as he wishes.” Frank’s Nursery, 295 N.W.2d

at 608-09 (construing the “plain and ordinary meaning” of an ordinance and applying

principle that “zoning ordinances should be construed strictly against the city and in favor

of the property owner”). The county’s proposed interpretation of the solid-waste definition

contradicts this principle. And we take no comfort in the county’s assurance that it will

only apply the solid-waste ordinance reasonably, to items that the county deems discarded.

Frankly, we believe the county overreaches with its solid-waste ordinance in this case to

remedy its failure to enact an ordinance regulating outdoor storage in general.

       In sum, the county’s interpretation of the relevant statutory language is not a

reasonable alternative to Kiefer’s reasonable interpretation. Although some people will

view the items on Kiefer’s property as an eyesore, that concern does not justify applying

Isanti County’s solid-waste ordinance in this case. The unlicensed vehicles and other

miscellaneous items on Kiefer’s property are not “solid waste” under the plain language of

the ordinance, and his outdoor storage of the items is not governed by the ordinance. We

therefore hold that Kiefer’s outdoor storage of the unlicensed vehicles and miscellaneous

items on his property does not violate Isanti County’s solid-waste ordinance.

                                              II.

       As to Isanti County’s zoning ordinance, the district court concluded that Kiefer’s

outdoor storage is not a use that is currently permitted under the county’s zoning ordinance,

focusing its analysis on whether the use is a permissible accessory use under the ordinance.

See Isanti County, Minn., Zoning Ordinance § 6, subd. 5 (2014) (permitting “accessory


                                              9
uses customarily incidental to the uses permitted in . . . this Section”). Kiefer does not

challenge that conclusion on appeal. Instead, Kiefer argues that his “prior lawful use of

the real property still exists and must be considered today as a permitted non-conforming

use.” He contends that “since his initial purchase of the 52.9 plus acres of land . . . [he has]

used the property for his manufactured mobile home, storage of vehicles, semi-trailers, and

the outdoor storage of personal property including material piles,” and that “[t]his occurred

. . . prior to the enactment of the county’s zoning ordinances in March 1996.”

       In district court, Kiefer argued that his outdoor storage is a permissible preexisting

nonconforming use under the zoning ordinance and Minnesota caselaw. The zoning

ordinance states: “All legally established non-conformities as of the date of this Ordinance

may continue, but they will be managed according to applicable state statutes and other

regulations of this community for the subjects of alterations and additions, repair after

damage, discontinuance of use, and intensification of use.” Id. at § 22, subd. 1 (2014).




                                              10
       Moreover, the supreme court has stated:

                     It is a fundamental principle of the law of real property
              that uses lawfully existing at the time of an adverse zoning
              change may continue to exist until they are removed or
              otherwise discontinued. . . . [A] residential zoning ordinance
              may constitutionally prohibit the creation of uses which are
              nonconforming, but existing nonconforming uses must either
              be permitted to remain or be eliminated by use of eminent
              domain . . . .

Hooper v. City of St. Paul, 353 N.W.2d 138, 140 (Minn. 1984) (citation and quotation

omitted).

       The district court did not determine whether Kiefer’s outdoor storage of the

unlicensed vehicles and miscellaneous items is a permissible preexisting nonconforming

use.2 Because that determination is fact intensive and the district court’s findings regarding

Kiefer’s outdoor storage before the zoning change are inadequate to resolve the issue, we

remand for the district court to determine whether Kiefer’s outdoor storage of the

unlicensed vehicles and miscellaneous items is a permissible preexisting nonconforming

use. See Taylor v. LSI Corp. of Am., 781 N.W.2d 912, 917 (Minn. App. 2010) (remanding

a “fact-intensive” issue to the district court), aff’d, 796 N.W.2d 153 (Minn. 2011).

                                             III.

       Kiefer argues that the county’s misapplication of its solid-waste and zoning

ordinances results in an unconstitutional taking of his property.        The United States

Constitution provides that “private property [shall not] be taken for public use, without just



2
  The district court did determine that storage of the mobile home and semitrailer are
permissible preexisting nonconforming uses.
                                             11
compensation,” U.S. Const. amend. V, and the Minnesota Constitution provides that

“[p]rivate property shall not be taken, destroyed or damaged for public use without just

compensation,” Minn. Const. art. I, § 13. A property owner has a cause of action for

inverse condemnation when the government has taken private property without formally

using its eminent-domain power. N. States Power Co. v. Minn. Metro. Council, 684

N.W.2d 485, 487 n.2 (Minn. 2004).

      It “is well established that the government need not directly appropriate or

physically invade private property to effectuate a taking.” Wensmann Realty, Inc. v. City

of Eagan, 734 N.W.2d 623, 632 (Minn. 2007). “In limited circumstances, government

regulation of property may result in a taking.” Id. “[A] taking may result when the

government goes ‘too far’ in its regulation, so as to unfairly diminish the value of the

individual’s property, thus causing the individual to bear the burden rightly borne by the

public.” Id. (quotation omitted). “The property owner challenging the government’s action

has the burden of proving an unconstitutional taking or damage to the property.” Stenger

v. State, 449 N.W.2d 483, 485 (Minn. App. 1989), review denied (Minn. Feb. 28, 1990).

“Whether a governmental entity’s action constitutes a taking is a question of law that

[appellate courts] review de novo.” Wensmann, 734 N.W.2d at 631.

      Kiefer contends that the county’s misapplication of its solid-waste and zoning

ordinances resulted in a regulatory taking. The district court’s rejection of that claim is

based on the erroneous conclusion that Kiefer violated Isanti County’s solid-waste

ordinance. Moreover, whether or not Kiefer’s outdoor storage is a permissible preexisting




                                            12
nonconforming use remains to be determined on remand. We therefore reverse the district

court’s ruling on Kiefer’s takings claim and remand the claim for reconsideration.

      Conclusion

      In conclusion, we reverse the district court’s ruling that Kiefer’s outdoor storage

violates Isanti County’s solid-waste ordinance. Although we affirm the district court’s

ruling that Kiefer’s outdoor storage is not a use that is currently permitted under Isanti

County’s zoning ordinance, we remand for the district court to determine whether the

storage is a permissible preexisting nonconforming use. Lastly, we reverse the district

court’s ruling on Kiefer’s takings claim and remand the claim for reconsideration in light

of our decision regarding application of Isanti County’s solid-waste ordinance and the

district court’s resolution of Kiefer’s preexisting-nonconforming-use argument on remand.

      Affirmed in part, reversed in part, and remanded.




                                           13
