Lowell Trom, et al., Appellants,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1099

Lowell Trom, et al.,
Appellants,

vs.

County of Dodge, et al.,
Respondents,

Masching Swine Farms, LLC,
Respondent.

Filed April 17, 2017
Vacated
Hooten, Judge

Dodge County District Court
File No. 20-CV-15-17

James P. Peters, Law Offices of James P. Peters PLLC, Glenwood, Minnesota (for
appellants)

Paul D. Reuvers, Brian P. Taylor, Iverson Reuvers Condon, Bloomington, Minnesota (for
respondents/cross-appellants County of Dodge, et al.)

Jack Y. Perry, Maren F. Grier, Briggs and Morgan, P.A., Minneapolis, Minnesota (for
respondent/cross-appellant Masching Swine Farms, LLC)

Kevin P. Lee, Minnesota Center for Environmental Advocacy, St. Paul, Minnesota (for
amicus curiae Minnesota Center for Environmental Advocacy)

Bruce D. Nestor, De Leόn & Nestor, LLC, Minneapolis, Minnesota; and

Daniel H. Lutz, The Humane Society of the United States, Washington, D.C. (for amici
curia Humane Society of the United States and Animal Legal Defense Fund)
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Jenneane Jansen, Kris Palmer, Jansen & Palmer, LLC, Minneapolis, Minnesota (for amici
curia Dr. Jillian P. Fry, Dr. Robert S. Lawrence, Claire M. Fitch and Carolyn R. Hricko)

Considered and decided by Reilly, Presiding J udge; Hooten, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
Appellants Lowell Trom and Evelyn Trom (the Troms) challenge the district court’s
summary judgment upholding respondent Dodge County’s (the County) issuance of a
conditional use permit (CUP) to respondent Masching Swine Farm s, LLC (Masching) for
a feedlot operation (the project). Appellants argue that the County’s decision was
unreasonable and arbitrary because it failed to consider environmental and public health
concerns posed by the project as required by ordinance, and the expedited approval process
lacked fundamental fairness. In their related appeal, respondents argue that the district
court lacked subject matter jurisdiction because appellants failed to timely serve the County
with the summons and complaint. Because the district cour t lacked subject matter
jurisdiction, we vacate the district court’s decision.
FACTS
In February 2014, Masching applied for a CUP from Dodge County to operate a
swine farm on six acres of land. The swine farm was to house hogs equivalent to 720
animal units under Minnesota rules. In April 2014, the County approved the CUP. In May
2014, the Troms appealed the County’s decision to grant the CUP to the district court.
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While the Troms’ appeal to the district court was pending, Masching applied for a
Minnesota Pollution Control Agency (MPCA) feedlot permit. As part of that application,
Masching indicated that it had obtained suffici ent manure spreading agreements with
landowners to sell all manure produced at the farm, effectively rendering the farm wast e-
neutral. The County approved the MPCA feedlot permit in August 2014.
On November 18, 2014, the district court vacated the CUP due to an incomplete
application, as it was missing five required items. However, the district court passed no
judgment on the merits of the application, and stated that “Masching [was] at liberty to re-
apply for a CUP.” Masching re -applied for the CUP on November 20, 2014, and the
County approved the CUP immediately after a public hearing on December 11, 2014.
In January 2015, the Troms appealed to the district court a second time. The Troms
raised several issues, alleging that the second CUP application was also incomplete, that
the Dodge County Board of Commissioners (the Board) was biased, that the County
utilized a rushed process with an unfair hearing in approving the second CUP application,
and that the Board failed to adequately consider the CUP application on its substantive
merits. Masching and the County (collectively, respondents) argued that due to insufficient
service of process, the district court lacked subject matter jurisdiction over the appeal.
In June 2015, the district court issued an order in which it determined that the Troms
substantially complied with the service of process rules, and that the district court had
subject matter jurisdiction over the appeal. In May 2016, the district court issued a detailed
and thoughtful order granting respondents’ motions for summary judgment. After an
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exhaustive review of the administrative record, the distr ict court determined that the
County’s grant of the CUP was reasonable. Both parties now appeal.
D E C I S I O N
In their related appeal, respondents argue that the district court lacked subject matter
jurisdiction to hear the Troms’ appeal because the County was not properly served with the
notice of appeal. The sufficiency of service of process is a question that we review de
novo. Turek v. A.S.P. of Moorhead, Inc., 618 N.W.2d 609, 611 (Minn. App. 2000), review
denied (Minn. Jan. 26, 2001).
The relevant facts related to service of process are undisputed. On January 7, 2015,
within the 30 -day timeframe outlined in Dodge County, Minn., Zoning Ordinance
§ 18.8.6(A) (2016) , the Troms delivered their summons and complaint to the Dodge
County Sheriff.1 The Dodge County Sheriff was given instructions to serve one copy on
the County Board of Commissioners, specifically “on Commissioner Rodney Peterson,
Chair.” However, on January 6, 2015, the day before the Troms delivered their summons
and complaint to the sheriff, the Dodge County Board of Commissioners held a regularly
scheduled election, and Commissioner Peterson, who was the C hair at the time of the
December 11, 20 14 public hearing, was replaced as chair by Commissioner John Allen.
Although Dodge County had actual notice of the Troms’ suit, it is undisputed that neither

1 Service may be effectuated by delivering a summons to the sheriff in the county in which
the defendant resides, but “such delivery shall be ineffectual unless within 60 days
thereafter the summons is actually served on that defendant.” Minn. R. Civ. P. 3.01(c).
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Commissioner Allen nor the county auditor were served with the Troms’ summons and
complaint within the appropriate time period.
Using a standard, non-descript boilerplate iteration of every affirmative d efense
allowable, respondents averred in their answer that the Troms’ claims “are barred in whole
or in part for insufficient service of process” and that “subject matter jurisdiction is
lacking.” In April 2015, the Troms moved to amend their complaint. Respondents opposed
the motion on grounds that the district court lacked subject matter jurisdiction based on
insufficient service of process. In June 2015, the district court issued an order denying the
Troms’ request to amend their complaint, but only after determining that the Troms had
substantially complied with the service of process rules and that the district court had
subject matter jurisdiction over the appeal.
Quasi-judicial CUP decisio ns are normally reviewable only by certiorari to this
court. In re Block, 727 N.W.2d 166, 177 (Minn. App. 2007). However, when the ordinance
in question authorizes direct review by a district court, a district court may review the CUP
determination. Toby’s of Alexandria, Inc. v. County of Douglas, 545 N.W.2d 54, 56 (Minn.
App. 1996), review denied (Minn. May 21, 1996). The Dodge County ordinance governing
CUPs authorizes district court review provided that an appeal be filed “within thirty (30)
days after receipt of notice of the decision.” Dodge County Ordinance § 18.8.6(A).
An appeal of a quasi-judicial municipal decision is in fact the commencement of a
new civil action, and therefore service of process is governed by Minn. R. Civ. P. 4.03. In
re Skyline Materials, Ltd. , 835 N.W.2d 472, 477 (Minn. 2013) . Rule 4.03(e)(1) requires
that service upon the Dodge County Board may be effectuated by delivering a copy of the
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summons and complaint “[t]o the chair of the county board or to the county audi tor of a
defendant county.” Failure to comply with the rule 4.03 service requirements results in a
lack of subject matter jurisdiction, and mandates dismissal.2 In re Skyline Materials, Ltd.,
835 N.W.2d at 473.
The district court determined that becaus e Dodge County had actual notice of the
suit, they were not prejudiced by service upon the wrong person. The district court
reasoned that by directing service “to the proper office, if not the right person,” the Troms
substantially complied with the rule 4.03 requirements for service. Based on this
combination of actual notice and substantial compliance, the district court determined that
this case “merits a minimal expansion of the substantial compliance doctrine to cover
situations where plaintiffs, except for a technical error made in good faith, an error which
does not prejudice the governmental defendant in the least, complied with [r]ule 4(e) in
serving a county board.” While perhaps well intentioned, this expansion of the substantial
compliance doctrine was error.
At the time of the district court’s order, whether actual notice combined with
substantial compliance was sufficient to confer jurisdiction in substitute service situations
was still unclear. See Turek, 618 N.W.2d at 612. However, after the district court issued

2 The Troms argue that by not averring Commissioner Peterson’s inability to be sued in his
representative capacity with peculiarity as required by Minn. R. Civ. P. 9.01, respondents
have waived the jurisdictional argument. However, where a district court’s authority to
review a quasi -judicial decision is created by ordinance, as here, compliance with the
ordinance is required in order for the district court to obtain subject matter jurisdiction. In
re Skyline Materials, Ltd., 835 N.W.2d at 473. Contrary to the Troms’ argument, a defense
that the court lacks subject matter jurisdiction cannot be waived and may be raised at any
time. Minn. R. Civ. P. 12.08(c).
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its order, the Minnesota Supreme Court clarified the relationship between actual notice,
substantial compliance, and rule 4.03. See Jaeger v. Palladium Holdings, LLC , 884
N.W.2d 601 (Minn. 2016). In Jaeger, the supreme court held that even in cases of
substitute service at a defendant’s residence, strict compliance with rule 4.03 was required.
Id. at 609.
Jaeger clarifies that Minnesota law does not recognize a good faith, actual notice
exception to the service of notice rules . Id. Thus, service provisions in statutes or
ordinances which confer jurisdiction to a district court must be strictly followed in order
for the district court to acquire jurisdiction. In re Skyline Materials, Ltd. , 835 N.W.2d at
477; cf. Land O’ Lakes Dairy Co. v. Hintzen , 225 Minn. 535, 538, 31 N.W.2d 474, 476
(1948) (“[W]here jurisdiction is specially conferred by statute and the court is expressly
prohibited from exercising it unless certain conditions have been complied with, its
judgment is not valid unless it appears affirmatively that conditions were complied with.”).
Because Minnesota law does not recognize a good faith, actual notice exception to
service on a county board, and because it is undisputed that the Troms did not properly
serve the sitting Chair of the Dodge County Board of Commissioners or the county auditor
as required by rule 4.03 by the deadline in the enabling ordinance, we conclude that the
district court lacked subject matter jurisdiction to hear this ap peal. We therefore cannot
reach the merits of the Troms’ appeal.
Vacated.