County of Isanti, Respondent,

This opinion will be unpublished and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
A17-0326

County of Isanti,
Respondent,

vs.

Keith Allen Kiefer,
Appellant.

Filed August 14, 2017
Affirmed
Kirk, 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 Rodenberg, Presiding Judge; Kirk, Judge; and Florey,
Judge.
U N P U B L I S H E D O P I N I O N
KIRK, Judge
Appellant-landowner challenges the district court’s order on remand, arguing that
the court erred by concluding that certain items stored on appellant’s property were not
preexisting nonconformities and that respondent-county did not commit an

2
unconstitutional taking. Appellant also argues that the district court abused its discretion
by denying his request to reopen the record on remand. We affirm.
FACTS
The facts and procedural history of this case are set forth in detail in our previous
opinion, Cty. of Isanti v. Kiefer , No. A15-1912, 2016 WL 4068197 (Minn. App. Aug. 1,
2016). The following facts pertain to the issues addressed by the district court on remand.
Appellant Keith Allen Kiefer has occupied approximately 53 acres of property in
Isanti County since 1992 and has owned this property since at least 1996. The property is
currently zoned for agriculture /residential use, but, prior to 1996, it was solely zoned for
agriculture use. Since 1992, Kiefer has used one acre of the property to store a regenerator
and licensed and unlicensed vehicles . In 2007, the City of Ramsey transferred additional
vehicles and miscellaneous items from another property owned by Kiefer onto Ki efer’s
property in Isanti County.
In 2011, respondent C ounty of Isanti initiated a civil -abatement action alleging
Kiefer’s violation of the county’s solid -waste and zoning ordinances. In response, Kiefer
filed counterclaims against the county, alleging, in part, that the county’s solid -waste and
zoning ordinances, as applied in this context, resulted in an unconstitutional taking of his
property. Following a court trial, the district court concluded that the presence of the items,
with the exception of several licensed vehicles, a wooden box, a mobile home, and a
semitrailer, violated the county’s solid-waste ordinance. The district court also concluded
that the presence of the items, excluding the above-noted exceptions, violated the county’s
zoning ordinance because the outdoor storage of such items did not fall within the uses that

3
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.
Kiefer appealed, and this court affirmed in part, reversed in part, and remanded to
the district court. Kiefer, 2016 WL 4068197, at *6. Specifically, this court reversed the
district court’s conclusion that Kiefer’s outdoor storage violated the county’s solid -waste
ordinance. Id. at *4. Although this court affirmed the district court’s conclusion that
Kiefer’s outdoor storage is not currently permitted under the county’s zoning ordinance, it
remanded for the district court to determine whether such storage is a permissible
preexisting nonconforming use. Id. at *5. Finally, this court reversed the district court’s
ruling on Kiefer’s takings claim and remanded the claim for reconsideration. Id. at *6.
On remand, the district court concluded that three items —a wooden box, an
unlicensed vehicle, and a regenerator —on Kiefer’s property were permissible preexisting
nonconformities under the county’s zoning ordinance. The district court further concluded
that the miscellaneous i tems and a different unlicensed vehicle, all of which arrived at
Kiefer’s property in 2007, were not permissible preexisting nonconformities under the
county’s zoning ordinance. Finally, the district court again concluded that Kiefer’s
property had not been subject to an unconstitutional taking.
Kiefer appeals.

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D E C I S I O N
I. The district court did not err by concluding that certain items stored on
Kiefer’s property were not preexisting nonconformities.

Three general rules of construction guide a court’s interpretation of an ordinance:
(1) “courts generally strive to construe a term according to its plain and ordinary meaning”;
(2) “zoning ordinances should be construed strictly against the [county] and in favor of the
property owner”; and (3) “[a] zoning ordinance must always be considered in light of its
underlying policy.” Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608-
09 (Minn. 1980). “The interpretation and application of a[n] . . . ordinance is a question of
law, which we review de novo. ” Cannon v. Minneapolis Police Dep’ t, 783 N.W.2d 182,
192 (Minn. App. 2010) (quotation omitted).
It has already been determined that Kiefer’s outdoor storage is not a use that is
currently permitted under the county’s zoning ordinance. Kiefer, 2016 WL 4068197, at
*6. Nevertheless, the c ounty’s 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.” Isanti County, Minn., Zoning Ordinance § 22, subd. 1 ( Dec. 29,
2014). Kiefer argues that his outdoor storage on one acre of the property is permissible
under the county’s zoning ordinance and the district court erred by concluding that the
2007 addition of miscellaneous items and an unlicensed vehicle constituted an u nlawful
expansion of his preexisting nonconforming use.

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As noted in Kiefer’s initial appeal, the Minnesota 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 pro hibit 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) ( internal citations and
quotation omitted). Here, the zoning ordinance states that legally established
nonconformities “will be managed according to applicable state statutes.” Isanti County,
Minn., Zoning Ordinance § 22, subd. 1 . The applicable s tatute provides, “Except as
otherwise provided by law, a nonconformity, including the lawful use or occupation of land
or premises existing at the time of the adoption of an official control under this chapter,
may be continued, including through repair, replacement, rest oration, maintenance, or
improvement, but not including expansion.” Minn. Stat. § 394.36, subd. 4 (2016).
Kiefer claims that he has always used one acre of the property for outdoor storage,
and, therefore, because his outdoor storage continues to only oc cupy one acr e, his
preexisting nonconforming use did not expand following the 2007 addition of
miscellaneous items and an unlicensed vehicle. However, this argument is unconvincing
in light of Minnesota’s proscription against the expansion of preexisting nonconformities
and appellate-court precedent. See Freeborn Cty . v. Claussen , 295 Minn. 96, 99 , 203
N.W.2d 323, 325 (1972) (noting that zoning ordinance may prohibit the creation,

6
expansion, or enlargement of nonconforming uses, “but existing nonconforming uses must
either be permitted to remain or be eliminated by use of eminent domain”).
It is undisputed that Kiefer’s outdoor storage has grown to include a greater number
of items than he was storing in 1996 when the property was rezoned . Accordingly, the
miscellaneous items and unlicensed vehicle that arrived at the property in 2007 amount to
an expansion of Kiefer’s preexisting nonconforming use. Such an expansion is
impermissible under the county’s zoning ordinance and Minn. Stat. § 394.36, subd. 4 .
However, as the district court properly noted, the items predating the county’s zoning
ordinance continue to constitute preexisting nonconformities and must be permitted to
remain absent the county’s use of eminent domain. Accordingly, the district court did not
err by concluding that certain items stored on Kiefer’s property, which arrived at Kiefer’s
property in 2007, were not preexisting nonconformities and therefore violated the county’s
zoning ordinance.
II. The district court did not abuse its discretion by not reopening the record on
remand.

“[D]istrict courts are given broad discretion to determine how to proceed on
remand, as they may act in any way not inconsistent with the remand instructions
provided.” Janssen v. Best & Flanagan, LLP , 704 N.W.2d 759, 763 (Minn. 2005).
“Appellate courts review a district court’s compliance with remand instructions under the
deferential abuse of discretion standard.” Id.
Kiefer argues that the district court’s refusal to reopen the record to admit additional
exhibits on remand constituted an abuse of discretion. Kiefer sought to offer several

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documents on remand; however, the district court denied his request after determining that
such additional exhibits were unnecessary in light of the issues to be resolved.
This court’s remand in structions did not require the district court to reopen the
record, nor did this court indicate that the record was inadequate for resolving the remanded
issues. When reopening the record is mandatory, such a direction is explicitly given. See,
e.g., State v. Licari , 659 N.W.2d 243, 255 (Minn. 2003) (remanding with instructions to
reopen the record). Our previous opinion gave no such instructions. As a result, the district
court did not abuse its broad discretion by determining that, “[i]n this case, reopening the
record is unnecessary because the original trial record contains sufficient evidence to
resolve the remaining legal and factual issues.”
III. The district court did not err by concluding that the county did not commit an
unconstitutional taking.

The United States and Minnesota Constitutions provide that “private property [shall
not] be taken for public use, without just compensation.” U.S. Const. amend. V; see Minn.
Const. art. I, § 13. A property owner has a cause of action for inverse condemnation when
the government has effected a taking of 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). “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 tak ing is a question of law that [appellate

8
courts] review de novo.” Wensmann Realty, Inc. v. City of Eagan , 734 N.W.2d 623, 631
(Minn. 2007).
“It is well established that the government need not directly appropriate or
physically invade private property to effectuate a taking.” Id. at 632 . “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). Analysis of regulatory taking claims
generally considers (1) “[t]he economic impact of the regulation on the claimant”; (2) “the
extent to which the regulation has interfered with distinct investment -backed
expectations”; and (3) “the character of the governmental action.” Penn Cent. Transp. Co.
v. City of New York, 438 U.S. 104, 124, 98 S. Ct. 2646, 2659 (1978); s ee also Wensmann
Realty, 734 N.W.2d at 633-40 (considering the Penn Central factors).
Kiefer argues that the county’s wrongful enforcement of its solid-waste and zoning
ordinances resulted in a t aking. Specifically, Kiefer maintains that, “[t]o avoid further
criminal prosecution pending the outcome of the instant underlying matter, Kiefer rented
and used personal property storage elsewhere. Kiefer should have been able to store his
personal property on his designated one-acre of outdoor storage, but did not at his expense
of $2,496.”
Under the first Penn Central factor, the inquiry “turns in large part, albeit not
exclusively, upon the magnitude of a regulation’s economic impact and the degree to which
it interferes with legitimate property interests.” Wensmann Realty , 734 N.W.2d at 634

9
(quoting Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 540, 125 S. Ct. 2074, 2082 (2005)).
Although Kiefer may have incurred expenses by storing certain items in another location,
Kiefer remains able to store a number of items on the property. Moreover, there is no
indication that enforcement of the zoning ordinance has reduced the property’s value.
These same considerations also relate to the court’s analysis under the second Penn
Central factor. “In examining a property owner’s investment -backed expectations, the
existing and permitted uses of the property when the land was acquired generally constitute
the ‘primary expectation’ of the landowner regarding the property.” Id. at 637 (quoting
Penn Central, 438 U.S. at 136, 98 S. Ct. at 26 46). Kiefer argues that he purchased the
property “to use it for agricultural purposes, a single family home, and outdoor storage.”
At trial, Kiefer testified that the property’s primary use has been agricultural. Although
the zoning ordinance does restrict his ability to store certain items on the property, Kiefer
is still able to store preexisting nonconforming items outdoors and use the property in a
number of manners, including for agricultural purposes and a single family home. See
Isanti County, Minn., Zoning Ordinance § 6, subds. 2, 3 (Dec. 29, 2014) (listing permitted
and conditional uses in agriculture/residential district).
Finally, under the third Penn Central factor, the court must consider the character
of the government action. “[T]he appro priate focus of the character inquiry should be on
the nature rather than the merit of the governmental action.” Wensmann Realty , 734
N.W.2d at 639 (quotation omitted). “Although the relevant considerations may vary
depending on the circumstances of the case, an important consideration involves whether
the regulation is general in application or whether the burden of the regulation falls

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disproportionately on relatively few property owners.” Id. As discussed above, the
county’s actions were properly tak en to enforce an applicable ordinance. Kiefer cites the
county’s failure “to present evidence to show that the County uniformly implemented
county-wide the County’s interpretation of its ordinances as applied to Kiefer.” However,
such a burden resides with Kiefer, not the county. See Stenger, 449 N.W.2d at 485.
Accordingly, because each of the three Penn Central factors weighs in favor of the
county, the district court did not err by concluding that the county did not effect an
unconstitutional taking.
Affirmed.