Town of Denmark, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0168

Town of Denmark,
Respondent,

vs.

Kenneth C. Cordes, et al.,
Appellants,

DZ Trucking LLC, et al.,
Defendants.

Filed November 22, 2021
Affirmed
Smith, Tracy M., Judge

Washington County District Court
File No. 82-CV-19-4297

Robert A. Alsop, Kennedy & Graven, Chartered, Minneapolis, Minnesota; and

Paul D. Reuvers, Andrew Wolf, Iverson Re uvers Condon, Bloomington, Minnesota (for
respondent)

Kevin S. Sandstrom, Chris T. Nelson, Eckberg Lammers, P.C., Stillwater, Minnesota (for
appellants.

Considered and decided by Smith, Tracy M., Presiding Judge; Johnson, Judge; and
Hooten, Judge.
2
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
In this zoning-enforcement action, appellants Kenneth and Karen Cordes 1 seek
reversal of the district court’s grant of su mmary judgment to the Town of Denmark (the
township) declaring that the Cordeses are engaging in commercial activities on property in
violation of the township’s zoning ordinance and enjoini ng further commercial activities
on that property absent a conditional-use permit.
The Cordeses argue that the district c ourt erred because (1) their commercial use
should be considered a legal nonconforming us e and the township sh ould be collaterally
estopped from asserting otherwise; (2) even if their use was not lawful, the township should
be equitably estopped from enforcing its zoni ng ordinance because it acted wrongfully;
and (3) the zoning ordinance should be determined to be unenforceable because it conflicts
with the township’s 2030 and 2040 comprehens ive plans. Because we disagree with the
Cordeses on each point, we affirm.
FACTS
The Cordeses own property located in the township. Th e Cordeses purchased the
property in 1977, and, since th at time, they and their childre n have used the property for
various commercial purposes. The Cordeses do not dispute that the township’s current
zoning ordinance does not permit commercial activities on the property.

1 DZ Trucking and US Bank National Association, co-defendants in the district court, did
not join this appeal.

3
In 2018, the Cordeses entered into an agreement to sell the property to DZ Trucking,
owned by Crystal and David Zeverino, contingent on th e Cordeses’ obtaining both a
rezoning of the property to commercial/i ndustrial use and a conditional-use permit from
the township. The Cordeses and Mr. Zeverino ap plied for the property to be rezoned and
applied for a conditional-use permit. After ta king public comment, the township declined
to rezone the property or grant the conditiona l-use permit. As a result, the sale to DZ
Trucking did not go through.
Following the denial of the rezoning application, the township received complaints
that the property was being used to operate a trucking business. In 2019, the township
brought a criminal action against Mr. Cordes, alleging one misdemeanor count of unlawful
use of land. Shortly thereafter, the township initiated this civil suit, seeking declaratory
judgment that the Cordeses’ use of the property violated the township’s zoning ordinance
and seeking to enjoin the Cordeses from continuing their business operations on the
property.
In the criminal action, Mr. Cordes moved to dismiss the charge against him for lack
of probable cause. After an ev identiary hearing, the district court granted the motion. For
purposes of the motion, the township did not claim that there was an ordinance prohibiting
commercial activity in 1977 and conceded that Mr. Cord es used the property for
commercial trucking prior to the township’s enactment of a law prohibiting it. The
township instead argued th at the current commercial use was no longer a lawful
nonconforming use either because Mr. Cordes had pr eviously abando ned the use or
because the current amount of trucking activity constituted an impermissible expansion of
4
the legal nonconforming use. The district court rejected the to wnship’s arguments,
concluding that, based on the evidence, a reasonable jury would have reasonable doubt as
to whether the commercial truc king activity was ever aband oned or whether the current
use constituted an expansion of the legal nonconforming use.
Thereafter, in this civil action, the pa rties filed cross-motions for summary
judgment. In making those motions, the parties agreed that the Cordeses used the property
for business purposes, including commercial trucking, vehicle repair, and outdoor storage
of trucks and ot her commercial vehicles. The Cordes es conceded that these activities
violated the township’s zoni ng ordinance but argued that they should be allowed to
continue because the activities were legal nonconforming uses. The Cordeses also argued
that the township should be collaterally estopped from arguing—based on the district
court’s ruling in the criminal action—th at the commercial use was not a legal
nonconforming use. Finally, th e Cordeses argued that the to wnship should be equitably
estopped from enforcing the zoning ordinanc e because of the township’s inaction in
enforcing the ordinance and its dealings with the Cordeses over the years showing that the
township knew of their commercial use of the property.
At the commencement of this action and at the time that bot h parties moved for
summary judgment, the township was unable to locate certain historical versions of the
township’s zoning ordinances—including th e ordinance in effect when the Cordeses
purchased the property and began their commer cial use in 1977. But, following a request
for clarification from the district court after the summary-judgment hearing, the township
5
located its earlier zoning ordinances.2 The zoning ordinance in effect in 1977 did not permit
any commercial activity on the property. Foll owing the discovery of the ordinances, the
district court reopened the record to permit the parties to submit supplemental briefing. In
their supplemental briefing, the Cordeses opposed consideration of the zoning ordinance
in effect in 1977 because of its late discove ry. The Cordeses also asserted an additional
argument in favor of their motion for summary judgment—specifically, that the township’s
current zoning ordinance is invalid because it conflicts with the township’s 2030 and 2040
comprehensive plans.
The district court granted the township’s motion for summary judgment and denied
the Cordeses’ motion. The district court declared that the Cordeses’ use of the property was
unlawful and permanently enjoined the Cordes es from engaging in commercial activities
on the property without a conditional-use permit.
The Cordeses appeal.
DECISION
Summary judgment “is appropriate when there is no genuine issue of material fact
and a party is entitled to judgment as a matter of law.” Senogles v. Carlson, 902 N.W.2d
38, 42 (Minn. 2017). An appella te court reviews a grant of summary judgment de novo.
Com. Bank v. W. Bend Mut. Ins. Co., 870 N.W.2d 770, 773 (Minn. 2015). “In conducting

2 The missing ordinances, whic h included the original township zoning ordinance from
1960 and subsequent amendments, were locate d in a “safe and other filing cabinets that
had not previously been searched” at the to wnship office. However, the ordinances were
also located on file at the Washington County Law Library, as is required by statute. See
Minn. Stat. § 415.021 (2020).
6
this review, [appellate courts] view the ev idence in the light mo st favorable to the
nonmoving party and resolve all doubts and factual inferences against the moving parties.”
Fenrich v. Blake Sch., 920 N.W.2d 195, 201 (Minn. 2018) (quotation omitted).
The Cordeses do not argue that the cu rrent zoning ordinance permits their
commercial activities on the property. Instead, they make three other arguments. First, they
assert that their commercial activities should be considered a legal nonconforming use for
two reasons: (1) because the zoning ordinance in place in 1977 should not be considered
since it was discovered late and (2) because, un der principles of collateral estoppel, the
ruling in the criminal case determined that their use is a legal nonconforming use. Second,
the Cordeses argue that, even if their commercial use is not a legal nonconforming use, the
township should be equitably estopped from enforci ng the current ordinance because of
the township’s conduct. Finally , the Cordeses argue that the current zoning ordinance is
unenforceable because it conflicts with the to wnship’s comprehensive plans. We address
each argument in turn.
I. As a matter of law, the Cordeses’ use is not a legal nonconforming use.

The Cordeses first argue that, as a matte r of law, their commercial use should be
considered a legal nonconforming use. Use of a property that was lawful prior to a zoning
change generally may continue even though it is barred by current zoning law. See Minn.
Stat. § 462.357, subd. 1e (2020) (authoriz ing preexisting nonconf ormities to continue
subject to certain exceptions). The Cordeses ar gue that their commercial use was a legal
nonconforming use even though it was not permitted under the zoning ordinance in place
in 1977. They make two arguments, neither of which is persuasive.
7
A. The district court properly considered the ordinance in effect in 1977.
The Cordeses first argue that the district court erred by considering the ordinance in
effect in 1977 because the to wnship located it after the parties had submitted their
summary-judgment motions. They assert that Minn. R. Civ. P. 37.03(a) precludes
consideration of the ordinan ce because the ordinance was in formation that the township
failed to timely produce in discovery.
“The interpretation of the Minnesota Rule s of Civil Procedure is a question of law
that [an appellate court] reviews de novo.” Gams v. Houghton , 884 N.W.2d 611, 616
(Minn. 2016).
Minn. R. Civ. P. 37.03(a) states:

If a party fails to provide inform ation or identify a witness as
required by Rule 26.01 or 26.05, the party is not allowed to use
that information or witness to supply evidence on a motion, at
a hearing, or at a trial, unless the failure was substantially
justified or is harmless.

The rule applies to information or a witness to be disclosed under Minn. R. Civ. P. 26.01
or 26.05. Rule 26.01, in turn, requires partie s to produce three cate gories of information:
(1) initial disclosures of the identities of persons with discoverable information, documents
that support a claim or defens e, a computation of damages, and insurance information;
(2) disclosure of expert testimony; and (3) pretrial disclosure of witnesses and exhibits. See
Minn. R. Civ. P. 26.01. Rule 26.05 desc ribes the obligation to supplement those
disclosures. See Minn. R. Civ. P. 26.05.
We interpret rule 26.01 to require the production of factual information between the
parties, not the production to ea ch other of copies of laws such as zoning ordinances.
8
Although the Cordeses cite to cases where appellate courts affirmed the exclusion of
nondisclosed factual evidence, see Gebhard v. Niedzwiecki, 122 N.W.2d 110, 116 (Minn.
1963); Fritz v. Arnold Mfg. Co. , 232 N.W.2d 782, 785-86 (Minn. 1975); Thorson v.
Zollinger Dental, P.A. , 728 N.W.2d 261, 267 (Minn. App. 2007), rev. denied (Minn.
May 15, 2007), they cite no cases where courts refused to consider a governing law because
a party had not produced a copy of it.
And, even if a physical copy of the or dinance from 1977 were to be considered
information required to be disclosed under rule s 26.01 and 37.03(a), the district court did
not err by considering it despite its late disc losure. The rules of civil procedure favor a
continuance and the inclusion of evid ence, rather than its exclusion. See Gebhard, 122
N.W.2d at 115 (“In cases where there is an honest mistake and the harm can be undone, it
may frequently occur that a continuance or some other remedy would be adequate . . . .”);
Whitney v. Buttrick, 376 N.W.2d 274, 279 (Minn. App. 1985), rev. denied (Minn. Jan. 23,
1986) (“Granting a continuance is preferred over exclusion of evidence.”). Here, after the
zoning ordinance in effect in 1977 was located, the district court afforded the parties
additional time to supplement their briefing, which they did. As a result, the district court
did not err by taking into account the ordinance in effect in 1977 that established that the
Cordeses’ commercial use was not a legal nonconforming use.
B. Collateral estoppel does not apply.
The Cordeses also argue that, under pr inciples of collateral estoppel, their
commercial use of the property must be considered a legal nonconforming use. The
Cordeses argue that “the precise issue of whether Appellants’ commercial trucking use on
9
the property was a legal nonconformity was addr essed in the criminal Court’s findings of
fact” and thus cannot be relitigated.
Collateral estoppel is the doctrine that “a right, question or fact distinctly put in issue
and directly determined by a court of compet ent jurisdiction cannot be disputed in a
subsequent suit between the same parties or their privies.” Hauschildt v. Beckingham, 686
N.W.2d 829, 837 (Minn. 2004) (quotation omitted). For collate ral estoppel to apply, the
following four elements must be met:
(1) the issue was iden tical to one in a prior adjudication;
(2) there was a final judgment on the merits; (3) the estopped
party was a party or in privit y with a party to the prior
adjudication; and (4) the estopped party was given a full and
fair opportunity to be heard on the adjudicated issue.

Mach v. Wells Concrete Prods. Co. , 866 N.W.2d 921, 927 (Minn. 2015) (quotation
omitted). Collateral estoppel applies only to “specific legal issues that have been
adjudicated.” Hauschildt, 686 N.W.2d at 837. It is not to be “rigidly applied.” See id.
The core issue here is whether the i ssue of preexisting nonconforming use was
actually litigated. In its ruling on Mr. Cordes’s motion to dismiss in the criminal matter,
the district court observed that, “for purposes of this motion, the State does not claim that
there was any code, or dinance, or other law in effect in 1977, prohibiting commercial
trucking activity in the Town on land zoned agricultural or rural residential.” (Emphasis
added.) This language reflects that, for purpos es of the probable-cause determination, the
township conceded that the commercial activity on the property in 1977 did not violate the
law.
10
The township’s concession for purposes of Mr. Cordes’s motion is akin to a
stipulation between parties. “[T]he fact that an i ssue is the subject of stipulation between
the parties does not necessarily mean the issue has been litigated.” G.A.W., III v. D.M.W.,
596 N.W.2d 284, 287 (Minn. App. 1999), rev. denied (Minn. Sept. 28, 1999). “[I]t is
always relevant in determinin g the effect of the judgment to ascertain the intent of the
parties in accordance with the usual rule for construing their agreements.” Hentschel v.
Smith, 153 N.W.2d 199, 204 (Minn. 1967). A stipul ation can have preclusive effect if the
parties have manifested an intent that the stipulation be binding in a subsequent action. See
G.A.W., III v. D.M.W., 596 N.W.2d at 287 (citing Restatement (Second) of Judgments § 27
cmt. e (1982)).
There is no indication in the record in this case that the township intended its
concession for purposes of the probable-cau se motion to constitut e an agreement that
would indefinitely bar it from enforcing its zoning law against the Cordeses.3 Instead, the
township, for purposes of the probable-cause motion, simply did not dispute that the use
of the property was lawful in 1977 and inst ead argued that Mr. Cordes had abandoned or
exceeded the bounds of the n onconforming use. In the pres ent civil matter, which ran
parallel to the criminal case, the township consistently asserted that the Cordeses’
commercial use of the property was unlawful from the start.4

3 The Cordeses did not provide us with any transcript from the criminal matter
demonstrating that the township intended its concession to apply in this civil matter.

4 The township argued in its initial summary-judgment memorandum that the Cordeses’
commercial use in 1977 violated the township’s zoning ordinance as well as county zoning
ordinance.
11
The Cordeses argue that a 1946 Minnesota Supreme Court decision supports their
argument that this issue was previously litigated and collateral estoppel should apply. See
Amundson v. Cloverleaf Mem’l Park Ass’n , 22 N.W.2d 170, 172 (Minn. 1946). But that
case does not apply here. Amundson holds that a litigant cannot on appeal revoke a
stipulation made in the same action. See id. That is not what the to wnship is trying to do
here. In the district court and on appeal, the township’s consistent position in this civil case
has been that the Cordeses’ commercial use was not lawful in 1977.
For collateral estoppel to apply, the issue must be one that was “actually litigated,
determined by, and essential to a previous judgment.” Roseberg v. Steen, 363 N.W.2d 102,
105 (Minn. App. 1985). Because the question of the lawfulne ss of the commercial use of
the property from the start was not litigated in the criminal proceeding, collateral estoppel
does not bar the determinatio n that the Cordeses’ comme rcial use is not a legal
nonconforming use.
II. As a matter of law, equitable estoppel does not apply beca use the township’s
conduct was not wrongful.

The Cordeses next argue that the district court erred by failing to apply equitable
estoppel because, in engaging in commercia l activities on the proper ty, they reasonably
relied to their detriment on the township’s wrongful conduct—most significantly, its failing
to recognize that the property was in violation of the zoning ordinance for forty years. The
Cordeses also cite the township’s collection of commerc ial taxes and various agreements
it made with the Cordeses as examples of alleged wrongful conduct.

12
For equitable estoppel to apply against the government, the party seeking equitable
relief must show that there is “wrongful conduct” on the part of an authorized government
agent, that the party reasonably relied on th e conduct, that the party incurred a unique
expenditure in that reliance, and that the bala nce of equities weighs in favor of estoppel.
See City of North Oaks v. Sarpal , 797 N.W.2d 18, 25 (Minn. 2011). A party “seeking to
assert estoppel against a governmental entity has a heavy burden of proof.” Id. (quotation
omitted).
We begin with the first element, “wrongful conduct” by the government. “Wrongful
conduct is the most important element of equitable estoppel.” Id. It requires “some degree
of malfeasance . . . a simple mistake by a government official is not wrongful.” Id. at 25-
26. Malfeasance is “[a] wrongful, unlawful, or dishonest act; esp., wrongdoing or
misconduct by a public official.” Black’s Law Dictionary 1145 (11th ed. 2019).
Here, the first allegedly wrongful conduct by the township was its failure to enforce
the zoning law at an earlier da te—its prolonged inaction, in other words. But a failure to
enforce an ordinance will not “effect its repeal or make it unenforceable.” See McCavic v.
DeLuca, 46 N.W.2d 873, 876-77 (Minn. 1951).
The Cordeses also cite the township’s collection of commercial taxes on the
property, its contracting with the Cordeses in constructing a commercial office park on
adjacent property, and its approval of a build ing permit on the prope rty as examples of
affirmative misconduct. The Cordeses argue th at these actions show that the township
“consistently acknowledged and encouraged the commercial activit ies happening on the
Property.”
13
None of these actions can reasonably be said to constitute malfeasance rising to the
level of “wrongful conduct.” There is no indication that township officials acted unlawfully
or dishonestly in carrying out any of these actions. Instead, the actions at most suggest that
the township was aware of the commercial use of the property but mistakenly believed that
the use was lawful. Mistakes do not constitute wrongful conduct. Sarpal, 797 N.W.2d at
25-26. Thus, “[w]hile the resu lt may be harsh, a municipa lity cannot be estopped from
correctly enforcing the ordinance even if the property owner relied to his detriment on prior
city action.” Mohler v. City of St. Louis Park , 643 N.W.2d 623, 638 (Minn. App. 2002)
(quotation omitted).
On appeal, the Cordeses ar gue that the “Township enga ged in a concerted pattern
of affirmative malfeasance” because it “intentionally chose to disregard and not enforce its
ordinance,” which “goes beyond mere inaction, inadvertence, or mistake and constitutes
wrongful conduct of [sic] the Township.” But, at the district court, the Cordeses did not
claim that the township intentionally chose to disregard and not enforce the ordinance and
they provided no evidence to support such a claim. Because our review is limited to the
record in the district court, see Thiele v. Stich , 425 N.W.2d 580, 582 (Minn. 1988), the
Cordeses’ argument of intentional misconduct is unavailing.
Because wrongful conduct requires more than simple mist akes by government
officials, based on the undisputed facts, th e Cordeses failed to meet their burden of
14
establishing the first element of equitable estoppel. As a result, equitable estoppel does not
apply, and we need not address the remaining elements.5
III. The township’s zoning ordinance does not conflict with its comprehensive
plans.

Finally, the Cordeses argue that the township’s zoning ordinance conflicts with the
township’s 2030 and 2040 comprehensive plans and that therefore the comprehensive plans
control and the zoning ordinance is unenforceable. The township counters that there is no
conflict and that, even if there were, the cour ts cannot dictate how the township resolves
it.
The township is required by the metropolitan land-planning act (MLPA) to produce
a comprehensive plan. See Minn. Stat. § 473.851-.871 (2020). Under the MLPA, “[i]f the
comprehensive municipal plan is in conflic t with the zoning ordinance, the zoning
ordinance shall be brought into conformance with the plan by loca l government units in
conjunction with the review and, if necessa ry, amendment of its comprehensive plan.”
Minn. Stat. § 473.858, subd. 1. Further, a local government subject to the MLPA cannot
adopt a zoning ordinance “which is in conflict with its comprehensive plan” Id.
In support of their assertion that th e township’s zoning ordinance and its
comprehensive plans are in conflict, the Co rdeses submitted existing-land-use maps that

5 On appeal, the Cordeses argue that a dispute of material fact exists regarding the issue of
equitable estoppel, precluding summary judgme nt. At the district court, though, the
Cordeses argued that the facts were undisputed and that judgment as a matter of law was
appropriate on the issue, although in their favor. From our review of the record, we discern
no disputes of fact regarding the issue and c onclude that, as a matte r of law, equitable
estoppel does not apply.
15
are included in the 2030 and 2040 comprehens ive plans. The 2030 comprehensive plan
includes a map entitled “Existing Land Use (2005),” which depicts the existing use of the
property in 2005 as “Rural Commercial/Industrial.” The 2040 comprehensive plan includes
a map entitled “Generalized Land Use (2016),” which depicts the pr operty’s land use in
2016 as “Retail and Other Commercial.” The Cordeses argue that, because these maps
show the existing use of the property in 2005 and 2016 as “commercial,” the
comprehensive plans conflict with the zoning law.
The argument is unpersuasive. The comp rehensive plans include not only existing-
use maps but also two other categories of ma ps: zoning maps and planned use maps. The
“Zoning Districts” map in the 2030 comprehe nsive plan depicts the property as zoned
“Rural Residential” in 2008, and the “Zoning Map” in the 2040 comprehensive plan depicts
the property as zoned “Rural Residential” in 2011. The zoning maps thus consistently
depict the property as zone d other than commercial. As to planned use, the 2030
comprehensive plan includes a “2030 Planned Land Use” ma p depicting the property as
“Rural Residential,” and the 2040 comprehe nsive plan’s “Future Land Use Plan” map
depicts the property in a category other than commercial. Both comprehensive plans thus
contain planned-use maps that reflect noncommercial use for the property. Considered in
context, the maps relied on by the Cordeses show only the existing use of the property, not
the authorized use under the zoning laws or the planned future use for the property, and
thus do not demonstrate a conf lict with the current zoning ordinance. The Cordeses
16
submitted no other evidence of a conflict between the comprehensive plans and the
ordinance.6 As a matter of law, the evidence in the record does not establish a conflict.
Because, as a matter of law, the zoning ordinance does not conflict with the
township’s comprehensive plans, the Cord eses’ argument that the ordinance is not
enforceable fails. We need not address the township’s argument that its zoning ordinance
remains enforceable even if there were a conflict.
Affirmed.

6 Again, although the Cordeses argued for summar y judgment on this issue in the district
court, on appeal, they contend that there at least is a dispute of material fact regarding the
existence of a conflict, making summary judg ment inappropriate. We discern no factual
dispute. The parties agree as to the conten ts of the comprehensive plans and instead
disagree over the legal significance of the maps in those plans. On this record, there is no
factual dispute to resolve, and summary judgment is appropriate.