In re: the Matter of the Removal of that Certain Building owned by Theodore R. Thull, said property known as 124 Fromm Circle, Granite Falls, Minnesota.

This opinion will be unpublished and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
A16-1817

In re: the Matter of the Removal of that Certain Building owned by Theodore R. Thull,
said property known as 124 Fromm Circle, Granite Falls, Minnesota.

Filed April 24, 2017
Affirmed
Reilly, Judge

Chippewa County District Court
File No. 12-CV-15-388

Douglas D. Kluver, Kluver Law Office a nd Mediation Center, PLLC, Montevideo,
Minnesota (for appellant Theodore R. Thull)

Gregory L. Holmstrom, Jeremy R. Blackwelder, Holmstrom & Kvam, PLLP, Granite Falls,
Minnesota (for respondent City of Granite Falls)

Considered and decided by Smith, Tracy M., Presiding Judge; Hooten, Judge; and
Reilly, Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant property owner challenges the di strict court’s judgment that a partially
completed structure on his property is a nui sance and authorizing respondent-city to
remove it. We affirm.
D E C I S I O N
This appeal concerns a designation by re spondent City of Granite Falls that a
partially completed structure on appellant Theodore R. Thull’s property constitutes a public

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nuisance under a city ordinance enacted in May 2010. See Granite Falls, Minn., Code of
Ordinances (GFCO) § 150.09 (2010). The district court granted summary judgment in
favor of the city and authori zed removal of the structure on appellant’s property. Thull
challenges that judgment on appeal.
A district court may “dispose of an action on the merits if there is no genuine dispute
regarding the material facts, and a party is entitled to judgment under the law applicable to
such facts.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997); Minn. R. Civ. P. 56.03.
Where the material facts are undi sputed, as they are here, we review de novo the district
court’s application of the law to those facts. Citizens State Bank v. Raven Trading Partners,
Inc., 786 N.W.2d 274, 277 (Minn. 2010).
At oral argument, Thull clarified that the only issue on appeal is whether the district
court retroactively applied th e 2010 ordinance in rendering judgment. An ordinance is
presumptively not retroactive “unless clearly and manifestly so in tended” by the rule-
making authority. Lickteig v. Kolar , 782 N.W.2d 810, 818 (M inn. 2010) (quotation
omitted); Minn. Stat. § 645.21 (2016) (“No law shall be construed to be retroactive unless
clearly and manifestly so intended by the legisl ature.”). The retroactive application of an
ordinance is a legal question, to which we apply a de novo standard of review. State ex
rel. Swan Lake Area Wildlife Ass’n v. Nicollet Cty. Bd. of Cty. Comm’rs, 799 N.W.2d 619,
628 (Minn. App. 2011).
The city ordinance provides in relevant part that:

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[Where] a building permit has ini tially been used and expires
or is revoked and the structur e remains in the same condition
for a period beyond 90 days a nd after the expiration or
revocation of the permit and the failure to obtain an extension,
then in the event a complaint is filed, the structure may be
declared . . . a public nuisance an d . . . the structure may then
be ordered removed or other actions taken.

GFCO § 150.09.
The district court correctly determined that the ordinance “contained no provisions
giving it retroactive effect.” See, e.g., Sletto v. Wesley Constr., Inc., 733 N.W.2d 838, 842
(Minn. App. 2007) (“The language of the [law] must contain clear evidence of retroactive
intent, such as mention of the word ‘retroactive.’”) (quotation omitted)). But Thull asserts
that the district court nevertheless retroa ctively applied the 2010 ordinance by requiring
him to complete construction on the structure within 90 days of the date on which his 2003
building permit expired. This permit expired in 2005, well before the city enacted the
ordinance that is at issue here.
Thull misreads the district court’s order. The district court expressly found that the
city was “not seeking to remove the structur e for failure to comple te construction before
2010 when the ordinance was enacted.” Instead, the district court recognized that the city
was seeking to remove “an unfinished structur e, which admittedly has been left in an
unfinished state for far more than the 90 days required by the ordinance after the ordinance
was enacted,” independent of the building permit’s expiration in 2005.
A municipal ordinance is presumed valid, see City of Crystal v. Fantasy House, Inc.,
569 N.W.2d 225, 228 (Minn. App. 1997), review denied (Minn. Nov. 18, 1997), and carries
“the force and effect of law,” Minn. Stat. § 14.38, subd. 1 (2016). Thus, as the district

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court correctly noted, once the 2010 ordinanc e came into effect, Thull was required to
comply with it. Here, it is undisputed that (1) the city granted Th ull building permits in
2000 and in 2003, both of which expired w ithout completion of th e structure; (2) the
structure on Thull’s property is currently in the same, unfinishe d, condition; (3) the
structure has remained unfinished for a pe riod beyond 90 days; and (4) Thull failed to
obtain an extension of his building permit, or reapply for a new building permit, in a timely
manner.
The district court applied the ordinance to these undisputed facts and determined
that Thull was not in compliance with its requirements. See GFCO § 150.09. The district
court based its decision on the status of Thull’s property as it existed at the time of the
hearing; retroactive application was neither necessary nor employed. We therefore
determine, as a matter of law, that the distri ct court did not give re troactive effect to the
2010 ordinance by granting summary judgment in favor of the city and authorizing removal
of the structure.
We are not without sympathy for Thull. But the uncontested facts reveal that Thull
allowed two building permits to expire without completing hi s construction project. The
city building inspector sent letters to Thull on two separate occasions, recommending that
he apply for a new building permit to repair or replace the structure and cautioning that the
inspector would have “no othe r choice but to recommend [removal of] the structure” if
Thull failed to take action to come into compliance with the la w. Despite these
communications, Thull did not apply for anot her building permit until after the city had

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already taken steps to remove the unfinished structure by filing an action for removal in
district court. We cannot say that Thull is entitled to relief on these facts.
Affirmed.