Scott Nellis, Relator, vs. City of Coon Rapids Board of Adjustment and Appeals, Respondent.

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This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012). STATE OF MINNESOTA IN COURT OF APPEALS A13-0191 Scott Nellis, Relator, vs. City of Coon Rapids Board of Adjustment and Appeals, Respondent. Filed September 30, 2013 Affirmed Huspeni, Judge * City of Coon Rapids Board of Adjustment and Appeals File Nos. 45839-20632, 45839-20633 Timothy H. Baland, Baland Law Office, P.L.L.C., Anoka, Minnesota (for relator) David J. Brodie, Coon Rapids City Attorney, Douglas L. Johnson, Assistant City Attorney, Coon Rapids, Minnesota (for respondent) Considered and decided by Connolly, Presiding Judge; Cleary, Judge; and Huspeni, Judge. UNPUBLISHED OPINION HUSPENI, Judge In this certiorari appeal, relator challenges respondent-city s decision affirming a citation for the keeping of non-domestic animals, in violation of Coon Rapids, Minn., * Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. City Code (CRCC) § 6-503(1) (2011), and a citation for prohibited home occupation use in violation of CRCC §§ 11-703 (2011) and 11-603(5)(a) (2011). We affirm. FACTS Relator Scott Nellis owns residential property in an area of Coon Rapids designated Low Density Residential-2 (LDR-2). On October 18, 2011, Leya Drabczak, the city housing inspector, received a call from a person known to her who reported that there was a large pile of shavings from animal cages in Nellis s back yard. The caller described a strong and foul smell emanating from the shavings. The caller further stated that during a conversation with Nellis, Nellis said that he bred snakes and possessed about 100 snakes in his house. The following day, Drabczak visited Nellis s property and found several mounds of shavings in the back yard. She also discovered a pungent odor emanating from the mounds. She could detect the odor from the adjoining property. Drabczak then visited a website for a business that offered snakes for sale. The website identified Nellis by name, stated that he specialized in California Kingsnakes, Ball Pythons, various boas, and Aussie pythons, and provided a Coon Rapids post office box. Drabczak consulted with Keith Streff, an investigator with the Animal Humane Society, who concluded that it was likely that Nellis had a significant inventory of snakes in his house. Based on Drabczak s investigation, the city obtained an administrative search warrant allowing Drabczak, Streff, and [o]fficers and agents under their direction and control access to Nellis s house for the purpose of an inspection to determine violations of the Coon Rapids City Code, Chapter 6-500, Non-Domestic Animals, and Minnesota 2 statutes. Drabczak, Streff, and several Coon Rapids police officers executed the warrant on October 26. As they entered Nellis s house, ammonia in the air burned their eyes and throats. One officer became physically ill after entering the house and remained ill for several days. The remaining officers wore masks for their protection during the remainder of the inspection. During the inspection, Nellis admitted breeding, raising, and selling reptiles. He said that he owned about 100 snakes, along with other reptiles. He further stated that he raised rodents to feed the snakes. The inspection revealed roughly 300 snakes and 400 mice, along with a cat, lizards, iguanas, cockroaches, rats, and various feed insects in the maggot, pupae, or larvae stage. After Nellis refused to remove the snakes from his house, the city issued the two citations in question on June 4, 2012. Nellis challenged the citations at a meeting with a city hearing examiner, who affirmed the citations on October 2. Nellis appealed the hearing examiner s determination to the City of Coon Rapids Board of Adjustment and Appeals (the board). The board held a hearing and issued an order on December 6 affirming both citations. The order directed Nellis to remove all prohibited animals, to reduce the total square footage of his home occupation in the home to be no more than 25% of the habitable square footage, and to reduce the ammonia level inside the house to less than one part per million and to an undetectable level outside the house. The board also ordered Nellis to pay a civil penalty of $300 to the city. This certiorari appeal follows. 3 DECISION On appeal, Nellis challenges the board s decision, arguing that (1) there was not sufficient probable cause to justify the administrative search warrant; (2) the execution of the search warrant was unreasonable under the Fourth Amendment; (3) CRCC § 11603(5)(a) is unconstitutionally vague; (4) CRCC chapter 6-500 is unconstitutional because it does not have a grandfather clause; (5) CRCC chapter 6-500 violates the Equal Protection Clause; (6) the City of Coon Rapids lacked a rational basis for enacting CRCC chapter 6-500; and (7) the board acted arbitrarily and capriciously in affirming the two citations. We address each of Nellis s arguments in turn. I. Nellis argues that there was not probable cause to support the administrative search warrant because the affidavit in support of the search warrant [did] not establish the required nexus between [his] residence and suspected code violations. The United States and Minnesota Constitutions provide that no warrant shall issue without a showing of probable cause. U.S. Const. amend. IV; Minn. Const. art. I, § 10. Generally, a search is lawful only if it is executed pursuant to a valid search warrant issued by a neutral and detached judge based on a finding of probable cause. See Minn. Stat. § 626.08 (2010); State v. Harris, 589 N.W.2d 782, 787 (Minn. 1999). When determining whether a search warrant is supported by probable cause, we do not engage in a de novo review. State v. McGrath, 706 N.W.2d 532, 539 (Minn. App. 2005), review denied (Minn. Feb. 22, 2006). Instead, when reviewing a district court s probable cause determination made in connection with the issuance of a search warrant, 4 an appellate court should afford the district court s determination great deference. State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001). This court limits its review to ensuring that the issuing judge had a substantial basis for concluding that probable cause existed. McGrath, 706 N.W.2d at 539. In the criminal context, we look to the totality of the circumstances to determine whether the issuing judge had a substantial basis for finding probable cause. State v. Holiday, 749 N.W.2d 833, 839 (Minn. App. 2008). The task of the issuing [judge] is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (quotation omitted). [A]dministrative searches are significant intrusions upon the interests protected by the Fourth Amendment and therefore are covered by the warrant requirement. Search Warrant of Columbia Heights v. Rozman, 586 N.W.2d 273, 275 (Minn. App. 1998) (quotation omitted), review denied (Minn. Jan. 21, 1999). But, for administrative search warrants, the Fourth Amendment s probable cause standard is satisfied if the search is reasonable. Id. Nellis relies on a criminal case, State v. Souto, to argue that the supporting affidavit lacked a direct connection, or nexus, between the alleged crime and the particular place to be searched. 578 N.W.2d 744, 747 (Minn. 1998). When the request of the court is for the issuance of a warrant to search a particular location, there must be 5 specific facts to establish a direct connection between the alleged criminal activity and the site to be searched. Id. at 749. [T]he required nexus between the place to be searched and the items to be seized need not rest on direct observation; instead, the nexus may be inferred from the totality of the circumstances, including the type of crime involved, the nature of the items sought, the extent of an opportunity for concealment, and reasonable assumptions about where a suspect would likely keep that evidence. State v. Ruoho, 685 N.W.2d 451, 456 (Minn. App. 2004), review denied (Minn. Nov. 16, 2004). We note initially that reliance on criminal law cases may be less than totally persuasive in challenging an administrative warrant because the standard necessary to justify an administrative warrant is not as strict as the probable-cause requirement in the criminal context. See Columbia Heights, 586 N.W.2d at 275-76 (stating that an administrative search may be reasonable even without probable cause to believe there is a code violation). Nevertheless, because we conclude that probable cause existed to justify the warrant under the higher criminal-law standard, we do not specifically address the requirements of the administrative-warrant reasonableness standard as it relates to this case. Nellis acknowledges that the supporting affidavit states that his property had a large pile of shavings from animal cages in the back yard, and that a foul smell was coming from the shavings. He argues, nonetheless, that these allegations are insufficient to support probable cause for a search for animals inside his house. Nellis s argument is without merit. Even assuming, without determining, that the presence of 6 foul-smelling animal shavings in Nellis s back yard, along with his website advertising his snake-selling business, would be insufficient to make a common-sense inference that there was a fair probability that the snakes would be inside, the affidavit also states that Nellis told a known confidential reporting party that he breeds snakes and has approximately one hundred snakes in the residence. Nellis argues that this statement should not be considered for the purpose of determining probable cause because (1) it is hearsay and does not meet an exception to the rule of evidence prohibiting hearsay and (2) the affidavit does not contain any information allowing a magistrate to assess the credibility of the reporting party or the veracity of the reporting party s statements. But the district court is allowed to consider hearsay to determine the presence of probable cause. See Wiley, 366 N.W.2d at 268 (stating that a judge considers the veracity and basis of knowledge of persons supplying hearsay information ) (quotation omitted). And here the affidavit provided sufficient information for the district court to assess the credibility of the reporting party. The affidavit states that Drabczak, the affiant, corroborated the caller s report by visiting Nellis s backyard and finding two mounds of shavings from which emanated a pungent smell. The affidavit also states that Drabczak visited the website that states that . . . Nellis has been raising and breeding snakes and lizards since 1996 and provides a Coon Rapids, Minnesota post office box. See Holiday, 749 N.W.2d at 841 ( Even corroboration of minor details lends credence to an informant s tip and is relevant to the probable-cause determination. ). In sum, the district court had a substantial basis for concluding that probable cause existed. The warrant was issued properly. 7 II. Nellis argues that execution of the search warrant by 11 different persons was not reasonable and violated [his] constitutional right to be free from unreasonable searches and seizures. Nellis relies on two cases that state the test for determining whether police officers used excessive force under the Fourth Amendment. See Dokman v. Cnty. of Hennepin, 637 N.W.2d 286, 294 (Minn. App. 2001) ( The use of excessive force by officers constitutes a violation of the Fourth Amendment right to be free from unreasonable seizure. . . . ), review denied (Minn. Feb. 28, 2002); Carter v. Cole, 526 N.W.2d 209, 212 (Minn. App. 1995) (same), aff d/ 539 N.W.2d 241 (Minn. 1995). The test for determining whether police officers have violated the Fourth Amendment by using excessive force is whether the officers actions are objectively reasonable in light of the facts and circumstance confronting them, without regard to their underlying intent or motivation. Dokman, 637 N.W.2d at 294 (quotation omitted). In assessing reasonableness of the use of force, the conduct must be judged from the perspective of a reasonable officer on the scene. Id. (quotation omitted). Nellis argues that the city s search of his home was unreasonable because 11 persons raided [his] home and even though he was cooperative and not belligerent, a police officer was nevertheless assigned to watch [him] while the warrant was executed. Nellis does not actually allege the use of force, however, much less anything that amounts to excessive force, and he provides no further argument or authority to support his assertion that city officials acted unreasonably. See id. (holding that the act of shooting 21 chemical munitions into [a] home was reasonable and therefore not 8 excessive ); see also State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) ( An assignment of error based on mere assertion and not supported by any argument or authorities in appellant's brief is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection. (quotation omitted)). III. Nellis argues that CRCC § 11-603(5)(a) is void because it is unconstitutionally vague. The constitutionality of an ordinance is a question of law which this court reviews de novo. Hard Times Cafe, Inc. v. City of Minneapolis, 625 N.W.2d 165, 171 (Minn. App. 2001) (quotation omitted). When, as here, there is no fundamental right or suspect class involved, an ordinance is presumed to be constitutional, and the burden is on the challenger to prove a constitutional violation beyond a reasonable doubt. Thul v. State, 657 N.W.2d 611, 618 (Minn. App. 2003), review denied (Minn. May 28, 2003). Courts should exercise extreme caution before declaring a statute void for vagueness. Hard Times Cafe, 625 N.W.2d at 171. A statute is void due to vagueness if it defines an act in a manner that encourages arbitrary and discriminatory enforcement, or the law is so indefinite that people must guess at its meaning. Id. (quotations omitted). The use of general language in a statute does not make it vague. Id. But [p]ersons of common intelligence must not be left to guess at the meaning of the ordinance nor differ as to its application. City of Edina v. Dreher, 454 N.W.2d 621, 622 (Minn. App. 1990), review denied (Minn. June 15, 1990). An ordinance that is flexible and reasonably broad will be upheld if it is clear what the ordinance, as a whole, prohibits. State, City of Minneapolis v. Reha, 483 N.W.2d 688, 9 691 (Minn. 1992). Specific sections of the ordinance cannot be viewed in isolation, but rather, the ordinance must be read as a whole and considered in light of both its intent and its application by the city. Id. at 693. Vagueness challenges not involving First Amendment freedoms are to be examined in light of the applicable facts. State v. Christie, 506 N.W.2d 293, 301 (Minn. 1993). A person whose conduct is clearly prohibited under a statute cannot make a successful vagueness challenge on that statute. Id. Appellant must show that the ordinance lacks specificity as to his own behavior and not as to some hypothetical situation. Dreher, 454 N.W.2d at 622 (quotation omitted). Under CRCC § 11-701 (2011), LDR-2 districts are intended to provide land for attractive and diverse residential developments of single-family dwellings. Permitted land uses include single-family dwellings; agriculture, except feedlots; public uses or utilities, excluding major buildings, substations, towers, or high-voltage transmission lines ; and state-licensed community residential facilities and day-care facilities. CRCC § 11-702(1)-(4) (2011). Accessory uses are permitted as provided under section 11-603. CRCC § 11-703. CRCC § 11-603(5)(a) provides that a home occupation that is clearly incidental and secondary to the residential use of the property and does not change the character thereof constitutes an accessory use for a low-density residential district. Nellis argues that the ordinance is vague because the phrase incidental and secondary is not defined by city ordinance or caselaw. Nellis s argument is unpersuasive. Incidental is commonly defined as [o]f a minor, casual, or subordinate 10 nature. The American Heritage Dictionary 888 (5th ed. 2011); see Cnty. of Lake v. Courtney, 451 N.W.2d 338, 340 (Minn. App. 1990) (stating that ordinances must be construed according to their plain and ordinary meaning ), review denied (Minn. Apr. 13, 1990). Secondary is commonly defined as [s]econd or lower in rank or importance; not primary. American Heritage, supra, at 1582. The meaning of the phrase incidental and secondary is not so indefinite that people must guess at its meaning. The phrase simply indicates that an accessory use of property must not be the primary use and must be minor and subordinate to the residential use. Nellis argues further that the board s order to reduce the total square footage of his home occupation in the home to be no more than 25% of the habitable square footage shows that the phrase is subject to arbitrary and discriminatory enforcement. We disagree. Although it may be difficult to justify the board s decision to assign 25% as the threshold for incidental and secondary, it does not necessarily follow that the board s decision made in the context of a remedy is the result of an overly-vague ordinance. 1 See State v. Campbell, 756 N.W.2d 263, 269 (Minn. App. 2008) (stating that although there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls, that difficulty does not provide sufficient reason to hold the challenged language too vague ), review denied (Minn. Dec. 23, 2008). 1 The city asserts that [c]ity staff internally had come up with the [25%] figure as a suggestion for settling the case prior to the hearing, and then suggested it to the [b]oard as a benchmark in its deliberations as to the appropriate standard for its compliance order. 11 In this case, Nellis s conduct was clearly prohibited by the ordinance. Within a residential district intended to provide land for attractive residential developments of single-family dwellings, Nellis housed 300 snakes and 400 mice. He also kept lizards, iguanas, cockroaches, rats, and various feed insects in the maggot, pupae, or larvae stage. Regardless of the precise square footage Nellis used within his house to keep his reptiles, rodents, and insects, the resulting ammonia in the air burned the eyes and throats of the city officials executing the search warrant. Thus, Nellis s reptile-breeding operation was in no way clearly incidental and secondary to the residential use of the property, and furthermore, the operation changed the character of the house substantially. See CRCC § 11-603(5)(a) (stating that an accessory use is clearly incidental and secondary to the residential use of the property and does not change the character thereof ). Because the ordinance clearly prohibited Nellis s use of the property, his void-for-vagueness claim fails. See Christie, 506 N.W.2d at 301 ( A person whose conduct is clearly prohibited under a statute cannot make a successful vagueness challenge on that statute. ). IV. Nellis next argues that CRCC chapter 6-500 is unconstitutional because it does not have a grandfather clause. Nellis cites Hooper v. City of St. Paul, which states that [i]t 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. 353 N.W.2d 138, 140 (Minn. 1984). Nellis s argument is without merit. CRCC chapter 6-500 does not contain zoning ordinances. Rather, chapter 6-500 pertains to the regulation of domestic and non-domestic animals. See CRCC § 612 501 (2011) (stating that [t]his Chapter shall apply to all animals both domestic and nondomestic ). Nellis offers no discernible argument and no authority for application of this principle of real-property law to municipal animal regulation. See Modern Recycling,, 558 N.W.2d at 772 (stating that an assignment of error in brief based on mere assertion and not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection). Nellis therefore fails to meet his burden to prove that chapter 6-500 is constitutionally deficient for lack of a grandfather clause. See Minn. Voters Alliance v. City of Minneapolis, 766 N.W.2d 683, 688 (Minn. 2009) (stating that municipal ordinances are presumed constitutional, and the burden of proving that an ordinance is unconstitutional is on the party challenging the ordinance). V. Nellis next argues that CRCC chapter 6-500 violates the Equal Protection Clause. The constitutionality of an ordinance is a question of law, which we review de novo. Thul, 657 N.W.2d at 616. City ordinances are presumed constitutional; the burden of proving that they are unconstitutional is on the party bringing the challenge. Minn. Voters Alliance, 766 N.W.2d at 688. Both the United States Constitution and Minnesota Constitution guarantee the right to equal protection of the law. See U.S. Const. amend. XIV, § 1; Minn. Const. art. I, § 2. This guarantee generally requires that the government treat similarly situated persons alike. Kottschade v. City of Rochester, 537 N.W.2d 301, 306 (Minn. App. 1995), review denied (Minn. Nov. 15, 1995). But [t]he government may treat similarly situated persons differently when a distinction in treatment bears a rational relation to a legitimate 13 government objective. Id. (quotation omitted). The rational-basis test requires that (1) the distinctions that separate those included within the class from those excluded must not be arbitrary or fanciful; (2) the classification must be genuine or relevant to the purpose of the law; and (3) the purpose of the statute must be one that the government can legitimately attempt to achieve. Wegan v. Vill. of Lexington, 309 N.W.2d 273, 280 (Minn. 1981). In the first of two equal-protection arguments, Nellis claims that Coon Rapids has singled [him] out in enforcing this ordinance, while not enforcing it against pet stores. This argument is beyond our scope of review because there is nothing in the record regarding the city s enforcement of the ordinance against pet stores. See Resolution Revoking License No. 000337 W. Side Pawn, 587 N.W.2d 521, 523 (Minn. App. 1998) (stating that certiorari review is confined to the record before the [government agency] at the time it made its decision ), review denied (Minn. Mar. 30, 1999). Nellis s second argument regarding CRCC chapter 6-500 asserts that the ordinance creates an exception for cattle, apparently to address concerns of sod farm properties along Main Street, and that Coon Rapids has not advanced one reason for treating relator differently that has a rational relation to a legitimate government objective. But the burden is on Nellis to prove that the ordinance does not meet the rational-basis test, and he fails to show how the city s promotion of agriculture is not rationally related to the city s legitimate interest in promoting the public s health and welfare. See Thul, 657 N.W.2d at 617 ( Generally, the protection of health, morals, safety, or welfare are legitimate purposes. ). 14 VI. Nellis also contends that Coon Rapids lacked a rational basis for enacting CRCC chapter 6-500, which addresses the regulation of domestic and non-domestic animals. It is established that [municipal] ordinances are presumptively constitutional. The party challenging the provision bears the burden of proving that the ordinance is unreasonable and unconstitutional. A showing of unreasonableness requires that the challenging party prove that the ordinance has no substantial relationship to public health, safety, morals, or general welfare. Courts decline to interfere with a [municipality s] legislative discretion if the reasonableness of the ordinance is debatable. State v. Reinke, 702 N.W.2d 308, 311 (Minn. App. 2005) (emphasis in original) (quotation and citations omitted). Nellis specifically argues that CRCC § 6-502(2)(f) (2011), which includes within the definition of prohibited non-domestic animals any snake, that is a member of the pit viper or Boidae family, lacks a rational basis because many of the prohibited species are actually smaller than the snakes that are permitted, and pose no threat to humans. While conceding that an ordinance has a rational basis if it promotes the public health, safety, morals, or general welfare, citing Honn v. City of Coon Rapids, 313 N.W.2d 409, 415 (Minn. 1981), Nellis nonetheless cites his own written submission to the board, in which he wrote that the [p]ythons and boas of the species [he] keep[s] are harmless to humans and pose NO threat. Nellis further argues that he submitted to the board expert letters, several articles, and a position statement from the United States Association of 15 Reptile Keepers to support his position that many of the snakes prohibited under the ordinance are harmless. But the board specifically found, based on Streff s testimony, that [s]nakes in general, and the [c]ity-prohibited snakes in particular, can be dangerous to humans, especially to those who lack the knowledge to handle them. Thus, Nellis essentially asks this court to set aside the board s finding and make a contrary finding that the prohibited snakes pose no threat to humans in order to conclude that prohibiting the snakes does not promote the public health, safety, or welfare. But it is not the function of this court to engage in fact finding. See Fontaine v. Steen, 759 N.W.2d 672, 679 (Minn. App. 2009) ( It is not within the province of appellate courts to determine issues of fact on appeal. (quotation omitted)). Nor can we second-guess the board s credibility determinations. See Minneapolis Police Dep t v. Kelly, 776 N.W.2d 760, 766 (Minn. App. 2010) ( We defer to agency credibility determinations, lest we substitute our judgment for that of the agency. (quotation omitted)). We therefore decline to find that the snakes prohibited under chapter 6-500 pose no threat to humans and conclude that Nellis has failed to meet his burden of proving that the ordinance is unreasonable and unconstitutional. See Reinke, 702 N.W.2d at 312 (concluding that appellant failed to meet her burden because it was at least debatable that the ordinance at issue protected public health). VII. Finally, Nellis argues that the board acted arbitrarily and capriciously in affirming the two citations. 16 Review by certiorari is limited to an inspection of the record of the inferior tribunal in which the court is necessarily confined to questions affecting the jurisdiction of the board, the regularity of its proceedings, and, as to merits of the controversy, whether the order or determination in a particular case was arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it. Dietz v. Dodge Cnty., 487 N.W.2d 237, 239 (Minn. 1992) (quotation omitted). Nellis argues that the board s decision was unreasonable because it did not consider [his] objections to the square footage in his house, and the amount of space devoted to his hobby. As to the square footage of the house, the board found that it was about 2,500 square feet based on the testimony of Drabczak and Streff. Nellis asserted that his house was 2,682 square feet. To the extent Nellis asks us to re-weigh the evidence, we decline to do so. See Kelly, 776 N.W.2d at 766 ( We defer to agency credibility determinations, lest we substitute our judgment for that of the agency. (quotation omitted)). Moreover, in its findings of fact, the board explicitly considered Nellis s assertion that he had reduced the amount of space in the residence devoted to his reptile hobby business. But the board found that Nellis refused the [c]ity s requests to re-inspect the premises to confirm his assertion. Nellis further argues that the board did not consider [his] objections to the characterization of his snakes as vicious or harmful. As stated in the preceding section, the board found that [s]nakes in general, and the [c]ity-prohibited snakes in particular, can be dangerous to humans, especially to those who lack the knowledge to handle them. We will not second-guess the board s credibility determinations. See id. We 17 discern no further argument or basis for concluding that the board s decision was unreasonable. Affirmed. 18

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