Full Case Name:  State of Minnsota v. Bev Schuler

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Country of Origin:  United States Court Name:  Court of Appeals of Minnesota Primary Citation:  1997 WL 76337 (Unpub. Minn. 1997) Date of Decision:  Tuesday, February 25, 1997 Jurisdiction Level:  Minnesota Judges:  JJ. P.J. SHORT and HUSPENI and SHORT Judge. Considered and decided by DAVIES Attorneys:  Marshall H. Tanick, Debra S. Lepert, Mansfield & Tanick, P.A., Minneapolis, for appellant. Paul T. Ostrow, Sweeney, Borer & Ostrow, St. Paul, for respondent. Docket Num:  No. C9-96-1047.

This Minnesota lawsuit arose from the enforcement of a Little Canada ordinance prohibiting the keeping of more than three adult dogs in any residential dwelling within the city's residentially zoned districts.  In reviewing a challenge to the law, the court first noted that a city's police power allows it both to regulate the keeping of animals, and to define nuisances and provide for their abatement.  Further, municipal ordinances are presumptively constitutional and the burden rests on the party challenging it.  Here, Schuler failed to offer evidence that regulating the number of dogs per household was unrelated to controlling the problems of dog noise and odor as they affect the health and general welfare of the community.


This lawsuit arises from the enforcement of a Little Canada ordinance prohibiting the keeping of more than three adult dogs in any residential dwelling within the city's residentially zoned districts. From 1969 to the summer of 1996, Bev Schuler (Schuler) and her husband operated a home-based dog breeding and training business. When the Schulers began their business, there were no dog limitation ordinances in effect. Over the years, Little Canada's city council enacted various kennel and licensing ordinances, and, in 1985, the city council voted in favor of the dog limitation ordinance at issue in this case.

After receiving a "barking dog" complaint, city authorities inspected the Schulers' home in July of 1996. During that inspection, authorities noted the Schulers had more than three dogs and charged Schuler with a violation of the dog limitation ordinance. Schuler moved to dismiss the charges on grounds that the ordinance was unreasonable and violated due process of law, and that Schuler's dog breeding and training business qualified under the city code as both a nonconforming use and a valid home occupation. The trial court denied Schuler's motion, concluding the ordinance was a valid exercise of the city's police power and finding the Schulers' business did not meet the definitions of nonconforming use or valid home occupation. The case went to trial on stipulated facts before a different trial court judge. Relying on the prior judge's findings as law of the case, the trial judge found Schuler guilty of violating the city's dog limitation ordinance. On appeal from her misdemeanor conviction, Schuler argues (1) the ordinance is unconstitutional, and (2) in the alternative, Schuler's business is valid as both a nonconforming use and a home occupation. We affirm.


When a case is decided on stipulated facts, the only issue on appeal is whether the trial court erred in its application of the law. Reads Landing Campers Ass'n v. Township of Pepin, 546 N.W.2d 10, 13 (Minn.1996). We do not defer to the trial court's analysis of purely legal issues. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn.1984). The construction of an ordinance is a question of law, which is subject to de novo review. Frank's Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn.1980).


A city's police power allows it both to regulate the keeping of animals, and to define nuisances and provide for their abatement. Minn.Stat. § 412.221, subd. 21 (1996) (keeping of animals); Minn.Stat. § 368.01, subd. 15 (1996) (nuisances).

Municipal ordinances are presumptively constitutional. See In re Tveten, 402 N.W.2d 551, 556 (Minn.1987) (recognizing statutes are presumed to be constitutional). The burden of proving an ordinance unreasonable and unconstitutional rests on the party attacking its validity. Fairmont Foods Co. v. City of Duluth, 260 Minn. 323, 325, 110 N.W.2d 155, 157 (1961) (quoting State ex rel. Larson v. City of Minneapolis, 190 Minn. 138, 140, 251 N.W. 121, 121 (1933)). To prove an ordinance is unreasonable, a complaining party must show the ordinance "has no substantial relationship to the public health, safety, morals or general welfare." State v. Hyland, 431 N.W.2d 868, 872 (Minn.App.1988) (citation omitted) (emphasis added). Where the reasonableness of an ordinance is debatable, courts will refrain from interfering with the municipality's exercise of legislative discretion. Id. (quoting State v. Modern Box Makers, Inc., 217 Minn. 41, 47, 13 N.W.2d 731, 734 (1944)).

In challenging the ordinance's constitutionality, Schuler contends there is no rational basis for the dog limitation ordinance. Schuler argues: (1) excepting a report of a small number of problems with dogs in the local trailer court, which city health officials had addressed, the city council considered no evidence, empirical or otherwise, tending to show a reasonable connection between the ordinance and its desired purpose; (2) prior to enactment of the ordinance, a city council member related that the city had not received "many complaints on parties with too many dogs," with the exception of the above- mentioned report; and (3) a veterinarian's trial testimony established that problems with dogs are not caused only by high numbers of dogs per household, but are also affected by the size and breed of the dog, and the level of care provided by the dog owner. However, a municipality is not required to show affirmatively it enacted an ordinance based on empirical, factual evidence; rather, the party challenging the ordinance must demonstrate that there is no rational relationship between the ordinance and a health or safety goal of the community. See, e.g., Fairmont Foods, 260 Minn. at 326, 110 N.W.2d at 157 (striking down ordinance restricting bacteria count in raw milk because testimony conclusively demonstrated no link between lower bacterial counts and public health). Schuler has failed to offer evidence that regulating the number of dogs per household is unrelated to controlling the problems of dog noise and odor as they affect the health and general welfare of the community. Thus, it is at least debatable that the dog limitation ordinance is reasonable. See Hyland, 431 N.W.2d at 872 (refusing to interfere with legislative discretion if reasonableness of ordinance is debatable); see, e.g., Holt v. City of Sauk Rapids, slip. op. at 5-6 (Minn.App. Feb. 25, 1997) (upholding dog limitation ordinance where it was debatable that limitation was substantially related to controlling problems of dog noise and odor). Under these circumstances, Schuler has not overcome the presumption of constitutionality.

Schuler also argues the ordinance must fail because the ordinance arbitrarily chooses the number three as the maximum permissible quantity of dogs per household. Again, Schuler fails to present any facts that suggest a three-dog limitation is unrelated to public health objectives; she does not offer a method for deriving a "correct" number, or allege a different number would be preferable. Under these circumstances, we cannot say no substantial relationship exists between the ordinance and the public health or general welfare. See id. at 7 (refusing to overturn dog limitation ordinance merely because number was "arbitrary"); Hyland, 431 N.W.2d at 872 (requiring challenging party to prove ordinance is not substantially related to public health, safety, morals, or general welfare); see also Wolff v. City of Monticello, 803 F.Supp. 1568, 1572 (D.Minn.1992) (holding city is entitled, after determining regulation is necessary, to a reasonable opportunity to experiment with solutions to problem).


Notwithstanding the constitutionality of the ordinance, Schuler argues that she is entitled to continue her dog breeding and training business as a valid nonconforming use. However, the concept of "nonconforming use" has traditionally been applied only in the zoning law context. See, e.g., Hooper v. City of St. Paul, 353 N.W.2d 138, 140 (Minn.1984) (acknowledging fundamental principle of real property law that uses lawfully existing at time of zoning change may continue to exist until removed or otherwise discontinued).

Little Canada's zoning code provides:

[A]ny nonconforming * * * use lawfully existing upon the effective date of the ordinance * * * may be continued at the size and in the manner of operation existing upon such date * * *.

Little Canada, Minn., Mun.Code § 903.010(B) (1995). Schuler contends that the challenged ordinance has the practical effect of a zoning ordinance, and is, therefore, subject to the nonconforming use exemption. We disagree. Section 903.010(B), on its face, pertains only to zoning ordinances and does not address the larger category of ordinances generally affecting land. See Casco Twp. v. E. Brame Trucking Co., 34 Mich.App. 466, 191 N.W.2d 506, 508 (Mich.Ct.App.1971) (concluding zoning ordinances alone are subject to rights of nonconforming users where nonconforming use provision expressly relates only to zoning). Though the grant of zoning power from the state to a city is made subject to the rights of nonconforming users having rights at the time the zoning ordinance is enacted, this limitation does not apply when an ordinance is authorized under another grant of power from the state to a city. See id. (classifying township's soil removal ordinance as "regulatory" ordinance and refusing to subject it to nonconforming use provision of zoning code). We decline to encumber the exercise of regulatory power with nonconforming use provisions applicable on their face only to zoning ordinances.

Schuler also argues her dog breeding and training business is a valid home occupation under Little Canada, Minn., Mun.Code § 903.120 (1995). However, even if Schuler's business meets that definition, the business remains violative of the dog limitation ordinance. Under these circumstances, Schuler's argument under section 903.120 must fail.



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