text:
    STATE of Minnesota, Respondent, v. Gary M. KOLLA, Appellant.
    No. A03-55.
    Court of Appeals of Minnesota.
    Dec. 2, 2003.

      Mike Hatch, Attorney General, David P. Iverson, Assistant Attorney General, St. Paul; and Craig S. Nelson, Freeborn County Attorney, Karyn McBride, Assistant County Attorney, Albert Lea, for respondent.
    William G. Peterson, Peterson Law Office, P.A., Bloomington, for appellant.
    Considered and decided by HUDSON, Presiding Judge; RANDALL, Judge; and HALBROOKS, Judge.
   OPINION

HALBROOKS, Judge.

Appellant challenges his conviction of six counts of violating Minnesota state game and fish laws relating to the transport of minnows, arguing that (1) he successfully asserted the affirmative defense created by MinmStat. § 97A.255, subd. 2(a) (2000), and (2) the minnow-transport laws under which he was charged, MinmStat. §§ 97C.501, subd. 4(a)-(b), .515 (2000), discriminate against interstate commerce in violation of the Commerce Clause. We conclude that the affirmative defense asserted by appellant was not available to him. We further conclude that MinmStat. §§ 97C.501, subd. 4(b), and .515 are constitutional, and affirm appellant’s convictions under those provisions. Because we conclude that MinmStat. §§ 97A.475, subd. 28(1), 97C.501, subd. 4(a) (2000) violate the Commerce Clause, we reverse appellant’s convictions based on those provisions.

FACTS

Between 1988 and September 2000, appellant Gary Kolia, an Ohio resident, worked as a truck driver for the Akron Wholesale Bait Farm (Akron Bait), an Ohio business. Appellant’s job entailed driving a tractor-trailer fitted with fish-transport tanks from Ohio to baitfish wholesalers in South Dakota, loading the tanks with live minnows, and transporting the minnows back to Ohio. The truck appellant drove had Ohio license plates and a prominent sign on the cab reading “Akron Wholesale Bait Farm.”

On August 16, 2000, appellant picked up loads of minnows at two baitfish wholesalers in Brookings, South Dakota, and drove east along Interstate 90 to a rest stop near Hayward, Minnesota. There, he parked next to a minnow-transport truck belonging to the Shell Rock River Fish Farm (Shell Rock), a Hayward baitfish wholesaler. Appellant and Shell Rock owner David Palmer transferred minnows from the Shell Rock truck to appellant’s truck. Two Minnesota Department of Natural Resources (DNR) conservation officers observed the transfer. When appellant drove off, one officer followed him east along Interstate 90 until he entered Wisconsin.

The Minnesota Commissioner of Natural Resources is charged by statute with enforcing those game and fish laws that “prohibit or allow importation, transportation, or possession of a wild animal.” Minn. Stat. § 84.027, subd. 13 (2000); see also Minn.Stat. § 97A.011 (2000) (stating Minn. Stat. chs. 97A, 97B, 97C (2000) are the “game and fish laws”). Minnows are “[protected wild animals.” Minn.Stat. § 97A.015, subd. 39.

Minn.Stat. § 97C.501, subd. 4, provides:

(a) A nonresident may not transport minnows in a motor vehicle without an exporting minnow hauler license.
(b) A nonresident must obtain an exporting minnow hauler’s vehicle license for the motor vehicle used to transport minnows.... The license must be conspicuously displayed in the vehicle.
(c) Only one nonresident motor vehicle license may be issued to an exporting minnow hauler.

MinmStat. § 97C.515 provides:

Subdivision 1. General prohibition. A person may not bring live minnows into the state except as provided in this section.
Subd. 2. Permit for transportation. A person may transport minnows through the state with a permit from the commissioner. The permit must state the name and address of the person, the number and species of minnows, the point of entry into the state, the destination, and the route through the state. The permit is not valid for more than 12 hours after it is issued.

“To transport” means “[to] caus[e] ... wild animals to be carried or moved by a device and includes accepting or receiving wild animals for transportation or shipment.” Minn.Stat. § 97A.015, subd. 48.

Upon investigation, the conservation officer who followed appellant to the Wisconsin border on August 16 discovered that neither appellant nor Akron Bait held any licenses or permits to transport minnows in Minnesota. The DNR took no action.

On September 27, 2000, appellant again loaded minnows into his truck at two bait-fish wholesalers in Brookings and drove to the Shell Rock facility in Hayward, where he and David Palmer transferred minnows from the Shell Rock holding tanks into his own truck. Again, a DNR conservation officer observed this transfer. When appellant drove off, the conservation officer stopped him for failing to display an exporting minnow-hauler’s vehicle license. The officer arrested appellant after learning that he did not possess any licenses or permits to transport minnows in or through Minnesota.

On the basis of appellant’s August 16 and September 27 activity, the DNR charged him with two counts of failing to obtain an exporting minnow-hauler’s license, Minn.Stat. § 97C.501, subd. 4(a); two counts of failing to obtain an exporting minnow-hauler’s vehicle license, Minn.Stat. § 97C.501, subd. 4(b); and two counts of failing to obtain a 12-hour permit to transport minnows through the state, Minn. Stat. § 97C.515, subd. 2. Appellant pleaded not guilty.

Before trial, appellant filed a motion to dismiss the complaint, arguing that the minnows he transported were “private aquatic life” as defined by Minn.Stat. § 17.47, subd. 7 (2000), and not “wild animals of the state” subject to regulation by the Commissioner of Natural Resources. Minn.Stat. § 84.027, subd. 2 (2000); see also Minn.Stat. § 97A.266, subd. 2(a) (establishing affirmative defense to prosecution that alleges transportation of minnows in violation of game and fish laws where the defendant can show the animals in question were “raised in a private fish hatchery or aquatic farm”). Appellant also argued that dismissal was warranted because Minnesota’s nonresident minnow-transport license fees impermissibly discriminate against interstate commerce, in violation of the Commerce Clause. The district court denied the motion.

At trial, Palmer testified that the minnows appellant took on from the Shell Rock truck and holding tanks in Hayward, Minnesota had been trapped in South Dakota by Palmer’s sons, who operate a bait-fish wholesale operation in Brookings, and transported by Palmer to Minnesota. Palmer further testified to his belief that the minnows his sons trap are not bred, but occur naturally in waters leased by his sons on private property in South Dakota. Appellant’s attorney subsequently summarized Palmer’s testimony as stating that “all of the minnows that we are talking about here were ... raised on aquatic farms in South Dakota.” There was no objection to this characterization of Palmer’s testimony. A South Dakota State Department of Game, Fish, and Parks officer testified that both South Dakota baitfish wholesalers from whom appellant obtained minnows trap their fish in leased wetlands, ponds, and lakes in southeastern South Dakota.

The district court found appellant guilty as charged and imposed a 30-day stayed sentence, one year of probation, and a $950 fine. This appeal follows.

ISSUES

1. Did appellant successfully assert the affirmative defense created by Minn. Stat. § 97A.255, subd. 2(a) (2000)?

2. Do Minn.Stat. §⅞ 97A.475, subd. 28(1), 97C.501, subd. 4(a) (2000), regulating minnow transport by nonresidents, discriminate against interstate commerce in violation of the Commerce Clause?

ANALYSIS

I.

Appellant argues that the charges against him are defeated by his assertion of the affirmative defense set forth in Minn.Stat. § 97A.255, subd. 2(a) (2000), which provides:

In a prosecution that alleges animals have been ... transported, or possessed in violation of the game and fish laws, the burden of establishing that the animals were domesticated, reared in a private preserve, raised in a private fish hatchery or aquatic farm ... is on the defendant.

The parties agree that this provision, if applicable, provides an affirmative defense to charges brought pursuant to Minn.Stat. ch. 97C (2000). They also agree that all of the minnows in appellant’s truck on August 16 and September 27, 2000, came from South Dakota waters that were not subject to any licensing or regulatory scheme created or enforced by the Minnesota Commissioner of Natural Resources. The only issue is whether those waters were “aquatic farms” within the meaning of Minn.Stat. § 97A.255, subd. 2(a), such that appellant could successfully avail himself of the affirmative defense.

The interpretation of statutes and their application to undisputed facts present questions of law, which we review de novo. Rockford Township v. City of Rockford, 608 N.W.2d 903, 905 (Minn.App.2000). Minn.Stat. chs. 97A, 97B, 97C (2000) (the “game and fish laws”), do not define “aquatic farm.” Elsewhere in the Minnesota statutes, the Aquaculture Development Act (ADA), Minn.Stat. § 17.46.4999 (2000), defines an aquatic farm as

a facility used for the purpose of culturing private aquatic life in waters, including but not limited to artificial ponds, vats, tanks, raceways, other indoor or outdoor facilities that an aquatic farmer owns or [that] an aquatic farmer has exclusive control of, or private fish hatcheries licensed under section 97C.211 for the sole purpose of processing or cultivating aquatic life.

Minn.Stat. § 17.47, subd. 3. “A person or entity may not operate an aquatic farm without first obtaining an aquatic farm license from the commissioner [of Natural Resources].” Minn.Stat. §§ 17.4984, subd. 1(a), .4982, subd. 7.

At trial, appellant asserted that the minnows he possessed originated in “aquatic farms,” as defined by the ADA and were therefore “private aquatic life” beyond the scope of the commissioner’s authority, which is limited to the execution and enforcement of “laws relating to wild animals.” Minn.Stat. § 97A.201, subd. 1. The district court rejected this argument after concluding that the South Dakota waters in which the minnows originated were not, and could not be, licensed by the Minnesota commissioner to operate as aquatic farms pursuant to the ADA.

Appellant now abandons any reliance on the ADA’s definitions of “aquatic farm” or “private aquatic life” in asserting the affirmative defense set forth in Minn.Stat. § 97A.255, subd. 2(a). Instead, he relies on a South Dakota statute that provides that “[fjish grown or raised for breeding purposes or sale [are] agricultural products” to argue that the minnows he possessed were “agricultural products” and not wild animals susceptible to regulation under Minnesota game and fish laws. S.D. Codified Laws § 41-1-7 (Michie 2000). We disagree.

We first observe that arguments not presented to the district court are generally waived on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988) (stating party may not, on appeal, switch to a new theory on an issue). Second, we disagree with appellant’s contention that application of the ADA’s definition of “aquatic farm” to the term as it appears in the game and fish laws cannot be justified by the doctrine of in pari materia or any other canon of statutory construction.

“Statutes ⅛ pari materia’ are those relating to the same person or thing or having a common purpose.” Apple Valley Red-E-Mix, Inc. v. State by Dep’t of Pub. Safety, 352 N.W.2d 402, 404 (Minn.1984). Such statutes should be construed in light of one another. Id. The game and fish laws empower the Commissioner of Natural Resources to enforce regulations that preserve and protect aquatic wildlife. Minn.Stat. § 97A.045, subd. 1. The ADA empowers the commissioner to regulate cultured private aquatic life, which is “not wildlife.” Minn.Stat. § 17.4981. Minnows are defined as wild animals pursuant to the game and fish laws except when the circumstances under which they are cultivated bring them within the ADA’s definition of aquaculture. These two statutes complement each other and together serve a common purpose: to regulate and protect Minnesota’s waters and aquatic life, both public and private.

We therefore conclude that the ADA and the game and fish laws should be construed in fight of one another and that the ADA’s definition of “aquatic farm,” requiring a license from the Minnesota commissioner, is therefore applicable to the term as it appears in the affirmative defense asserted by appellant. Because it is undisputed that none of the minnows in appellant’s possession came from waters licensed as aquatic farms by the Minnesota commissioner, the affirmative defense is not available to appellant here.

We further observe that, in light of the evidence presented at trial, our conclusion would be the same even were we to disregard the ADA’s definition of “aquatic farm” in favor of the common definition of the term “farm” as applied to aquaculture, which is “[a]n area of water devoted to the raising, breeding, or production of a specific aquatic animal.” American Heritage Dictionary of the English Language 661 (3d ed. 1992). The evidence presented demonstrated that the fish appellant possessed were neither raised, bred, nor produced, but occurred naturally in South Dakota waters. Although appellant relies on a statement made by his attorney at trial, and not contradicted at the time, that the South Dakota waters were “aquatic farms,” that statement was not testimony, was contradicted by all other testimony, and was not credited by the district court.

II.

Appellant argues that the Minnesota minnow-transport laws under which he was charged discriminate against interstate commerce in violation of the Commerce Clause, U.S. Const, art. I, § 8, cl. 3. This court reviews the constitutionality of a statute de novo. State v. Grossman, 636 N.W.2d 545, 548 (Minn.2001). “Statutes are presumed constitutional.” Id. The party challenging the statute must show, beyond a reasonable doubt, that the statute violates the constitution. Id.

“Commerce Clause challenges involve a two-step inquiry. We first determine whether the challenged statute implicates the Commerce Clause and, if it does, then evaluate whether the statute violates the Commerce Clause.” Chapman v. Comm’r of Revenue, 651 N.W.2d 825, 832 (Minn.2002) (citation omitted).

Appellant was charged with two counts of failing to obtain a 12-hour permit to transport minnows through the state, Minn.Stat. § 97C.515, subd. 2, two counts of failing to obtain a nonresident exporting minnow-hauler’s vehicle license, Minn.Stat. § 97C.501, subd. 4(b), and two counts of failing to obtain a nonresident exporting minnow-hauler’s license, Minn.Stat. § 97C.501, subd. 4(a). It is undisputed here that the activity giving rise to the charges against appellant — the commercial transport of minnows within and out of the state — fall within the purview of the Commerce Clause. We note that differential treatment of residents and nonresidents can only implicate the Commerce Clause where the treatment concerns commercial livelihood and the transport of articles of commerce, as opposed to animals taken for sport or recreation. Compare Hughes v. Oklahoma, 441 U.S. 322, 338-39, 99 S.Ct. 1727, 1737-38, 60 L.Ed.2d 250 (1979) (stating Oklahoma statute regulating minnow transport implicated Commerce Clause where the minnows were articles of commerce), with Terk v. Ruch, 655 F.Supp. 205, 215 (D.Colo.1987) (stating Commerce Clause not implicated by regulation pertaining to sheep and goat hunting because sheep and goat hunting is purely for sport, and not commerce).

We must therefore determine whether those provisions of the game and fish laws under which appellant was convicted violate the Commerce Clause. The Commerce Clause provides that “[t]he Congress shall have Power ... [t]o regulate Commerce ... among the several States.” U.S. Const, art. I, § 8, cl. 3. “Though phrased as a grant of regulatory power to Congress, the Clause has long been understood to have a ‘negative’ aspect that denies the States the power unjustifiably to discriminate against or burden the interstate flow of articles of commerce.” Ore gon Waste Sys., Inc. v. Dep’t of Envtl. Quality, 511 U.S. 93, 98, 114 S.Ct. 1345, 1349, 128 L.Ed.2d 13 (1994); see also Caterpillar, Inc. v. C.I.R., 568 N.W.2d 695, 698 (Minn.1997) (stating negative, or dormant, Commerce Clause “prohibits states from discriminating against foreign trade even where Congress has failed to legislate on the subject.”).

Under the dormant Commerce Clause, the term “discrimination” means “differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter.” Oregon Waste, 511 U.S. at 99, 114 S.Ct. at 1350; see also Chemical Waste Mgmt., Inc. v. Hunt, 504 U.S. 334, 342, 112 S.Ct. 2009, 2014, 119 L.Ed.2d 121 (1992) (stating a law is discriminatory if it “tax[es] a transaction or incident more heavily when it crosses state lines than when it occurs entirely within the State” (quotation omitted)); New Energy Co. of Indiana v. Limbach, 486 U.S. 269, 273-274, 108 S.Ct. 1803, 1807, 100 L.Ed.2d 302 (1988) (stating “[t]his ‘negative’ aspect of the Commerce Clause prohibits economic protectionism”).

Nondiscriminatory regulations that have only incidental effects on interstate commerce are valid unless “the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.” Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970). By contrast, a “statute [that] facially discriminates against interstate commerce ... is all but per se invalid.” Camps Newfound/Owatonna, Inc. v. Town of Harrison, Me., 520 U.S. 564, 581, 117 S.Ct. 1590, 1601, 137 L.Ed.2d 852 (1997). However, a state may justify such a restriction “by demonstrating that it advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives.” Id. (quotation omitted).

Neither the 12-hour permit, which is available free of charge to any “person,” nor the vehicle license, which is available to residents and nonresidents for the same fee, is facially discriminatory. See Minn.Stat. §§ 97A.475, subd. 26(4) (resident vehicle license fee), 97A.475, subd. 28(2) (nonresident vehicle license fee), and 97C.515, subd. 2 (12-hour permit). There is ample and undisputed evidence in the record of the state’s strong interest in regulating the transport of minnows in order to prevent the release of nonindigenous species and disease pathogens into public waters and to protect existing natural aquatic habitats and the wildlife dependent on them. See, e.g., Minn.Stat. § 17.4984. There is also evidence that the state can effectively advance this interest by monitoring individuals who transport minnows within the state.

Given that the state’s interest is a legitimate one and that the statutory provision properly advances that interest, in order to invalidate the statute, this court would have to conclude that the putative local benefit is clearly outweighed by the burden upon interstate commerce. See Pike, 397 U.S. at 142, 90 S.Ct. at 847. With respect to the 12-hour permit and the nonresident vehicle license fee, that is not the case. Appellant has not shown that the burden imposed on interstate commerce by these provisions is more than minimal, while the demonstrated benefit to the state is significant. We therefore conclude that Minn.Stat. §§ 97C.501, subd. 4(b), and .515, subd. 2, are constitutional.

Appellant was also charged with two counts of transporting and exporting minnows without first obtaining a $675 nonresident exporting minnow-hauler’s license, in violation of Minn.Stat. § 97C.501, subd. 4(a). See Minn.Stat. § 97A.475, subd. 28(1) (setting fee). A Minnesota resident wishing to legally engage in identical activity must first obtain a $100 minnow-dealer’s license (for transport within the state) and a $350 exporting minnow-dealer’s license (for transport out of the state). Minn.Stat. §§ 97A.475, subd. 26(1), (3), 97C.501, subd. 2(a). A “minnow dealer” is defined as “a person taking minnows for sale, buying minnows for resale, selling minnows at wholesale, or transporting minnows for sale.” Minn.Stat. § 97A.015, subd. 30. In this context, “[t]o transport” means “[to] caus[e] ... [minnows] to be carried or moved by a device and includes accepting or receiving [minnows] for transportation or shipment.” Minn.Stat. § 97A.015, subd. 48.

The statute refers to a resident transporting minnows within the state as a “minnow dealer,” Minn.Stat. § 97C.501, subd. 2, a resident exporting minnows out of the state as an “exporting minnow dealer,” Minn.Stat. § 97C.501, subd. 2(c), and a nonresident transporting minnows both within and out of the state as an “exporting minnow hauler.” Minn.Stat. § 97C.501, subd. 4(a).

Appellant argues that the requirement that he obtain a $675 license to transport and export minnows, while the analogous licenses cost residents a total of $450, discriminates against interstate commerce in violation of the Commerce Clause. We agree.

On their face, Minn.Stat. §§ 97A.475, subd. 28(1), 97C.501, subd. 4(a), impose a differential charge favoring resident baitfish transporters over their nonresident counterparts. See Minn.Stat. § 97A.475, subd. 28 (setting resident minnow-transport fees). Those provisions are therefore discriminatory and per se invalid unless respondent demonstrates that they “advance[ ] a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives.” Oregon Waste, 511 U.S. at 100-01, 114 S.Ct. at 1351 (quotations omitted). “This is an extremely difficult burden, so heavy that facial discrimination by itself may be a fatal defect.” Camps Newfound, 520 U.S. at 582, 117 S.Ct. at 1601 (quotations omitted).

Respondent first argues that because resident transporters must also purchase licenses, the provisions are not facially discriminatory, and the more lenient Pike balancing test provides the proper legal standard. We disagree. Although the state’s right to impose a license requirement on resident and nonresident baitfish transporters is not in dispute, any scheme that imposes a surcharge based on geographic distinctions is patently discriminatory. Nor do we agree with respondent’s argument that its concededly strong interest in protecting its waters and fisheries by regulating baitfish transport and export precludes a finding that the provisions are discriminatory. “[T]he purpose of, or justification for, a law has no bearing on whether it is facially discriminatory.” Oregon Waste, 511 U.S. at 100, 114 S.Ct. at 1350; see also City of Philadelphia v. New Jersey, 437 U.S. 617, 626, 98 S.Ct. 2531, 2536, 57 L.Ed.2d 475 (1978) (stating the legislature’s purpose in enacting a discriminatory regulation is “not ... relevant” to the determination of whether the regulation violates the Commerce Clause).

Respondent next argues that, despite its facial discrimination, the nonresident minnow-transport provisions do not violate the Commerce Clause because the difference between the price for resident and nonresident licenses is so minimal that it cannot be considered discriminatory. But “the degree of a differential burden or charge on interstate commerce ‘measures only the extent of the discrimination’ and ‘is of no relevance to the determination whether a State has discriminated against interstate commerce.’ ” Oregon Waste, 511 U.S. at 100 n. 4, 114 S.Ct. at 1350 n. 4 (alteration in original) (quoting Wyoming v. Oklahoma, 502 U.S. 437, 455, 112 S.Ct. 789, 801, 117 L.Ed.2d 1 (1992)); see also Maryland v. Louisiana, 451 U.S. 725, 760, 101 S.Ct. 2114, 2136, 68 L.Ed.2d 576 (1981) (“We need not know how unequal [a][t]ax is before concluding that it ... discriminates.”). The Minnesota Supreme Court has held that

for purposes of a discrimination claim under the Commerce Clause the magnitude and scope of the discrimination against interstate commerce have no bearing on the question of whether the Commerce Clause has been violated. In other words, there is no de minimis defense to this type of Commerce Clause challenge.

Chapman, 651 N.W.2d at 833 (citing Camps Newfound, 520 U.S. at 581 n. 15, 117 S.Ct. at 1601 n. 15).

Finally, respondent cites to Oregon Waste for the proposition that “a facially discriminatory tax that imposes on interstate commerce the rough equivalent of an identifiable and ‘substantially similar’ tax on intrastate commerce does not offend the negative Commerce Clause.” See Oregon Waste, 511 U.S. at 102-03, 114 S.Ct. at 1352. Respondent contends that the surcharge on nonresident minnow transporters is a permissible “compensatory tax” necessary to offset costs incurred by Minnesota in regulating nonresident transporters. See id. at 102, 114 S.Ct. at 1351 (recognizing “the settled principle that interstate commerce may be made to pay its way” (quotation omitted)). We disagree. It is true that a facially discriminatory surcharge can be considered a permissible compensatory tax if the state can (1) identify the intrastate tax burden for which it is attempting to compensate and (2) show that the tax on interstate commerce “approximate^] — but [does] not exceed — the amount of the tax on intrastate commerce.” Id. at 103, 114 S.Ct. at 1352. Here, Minnesota imposes a $675 fee on nonresident minnow haulers without imposing an approximately equal or greater fee on residents for which the nonresident fee might be considered compensatory. The only analogous charge to the nonresident surcharge here is the $450 charge imposed on resident minnow haulers. “Respondents’ failure to identify a specific charge on intrastate commerce equal to or exceeding the surcharge is fatal to their [compensatory-tax] claim.” Id. at 104, 114 S.Ct. at 1352.

It is undisputed that respondent has an important interest in protecting its indigenous wildlife and aquaculture from exotic species and pathogens. “But whatever [the regulation’s] ultimate purpose, it may not be accompanied by discriminating against [minnow transporters] coming from outside the State unless there is some reason, apart from their origin, to treat them differently.” City of Philadelphia, 437 U.S. at 626-27, 98 S.Ct. at 2537; see also Maine v. Taylor, 477 U.S. 131, 149 n. 19, 106 S.Ct. 2440, 2453 n. 19, 91 L.Ed.2d 110 (1986) (stating “laws that respond to legitimate local concerns by discriminating arbitrarily against interstate trade” are not made valid by their beneficent purpose).

Respondent has presented no evidence that nonresidents who transport minnows pose a greater threat to the state’s waters and aquatic species, or are more expensive to regulate, than residents engaged in the same activities. Nor has respondent demonstrated any nexus between the surcharge and the actual costs incurred in the course of regulating nonresident minnow transport. We are therefore unable to conclude that the additional fee is based on anything other than the nonresidency of the individual transporting the minnows.

Minn.Stat. §§ 97A.475, subd. 28(1), 97C.501, subd. 4(a), facially discriminate against interstate commerce by requiring nonresidents to pay greater license fees than residents to transport minnows within and out of the state. Because respondent has not validly defended the nonresident surcharge by a valid factor unrelated to economic protectionism, we must conclude that these provisions violate the Commerce Clause.

“When a court determines that a statute is unconstitutional, it must invalidate as much of the statute as is necessary to eliminate the unconstitutionality.” Chapman, 651 N.W.2d at 836. A court that alters a statute by striking provisions must act consistent with the intent of the legislature that drafted the statute. Id.

Minn.Stat. § 645.20 (2000) provides:

Unless there is a provision in the law that the provisions shall not be severa-ble, the provisions of all laws shall be severable. If any provision of a law is found to be unconstitutional and void, the remaining provisions of the law shall remain valid, unless the court finds the valid provisions of the law are so essentially and inseparably connected with, and so dependent upon, the void provisions that the court cannot presume the legislature would have enacted the remaining valid provisions without the void one; or unless the court finds the remaining valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.

The game and fish laws do not provide that its provisions are not severable. Although this court can strike severable provisions as unconstitutional, it “cannot add language to a statute in order to render it constitutionally permissible.” McGuire v. C & L Restaurant Inc., 346 N.W.2d 605, 614 (Minn.1984).

Minn.Stat. § 97C.501 creates a general rule that a “person” who transports minnows within the state must obtain a minnow-dealer’s license and a minnow-dealer’s vehicle license and that a minnow dealer who transports minnows out of the state must obtain an exporting minnow-dealer’s license and an exporting minnow-dealer’s vehicle license. Minn.Stat. § 97C.501, subd. 2(b)-(e). The statute creates an exception to this general rule by requiring that nonresidents obtain an exporting minnow-hauler’s license to transport minnows within and out of the state. MinmStat. § 97C.501, subd. 4(a); see also Minn.Stat. § 97A.475, subd. 28(1) (establishing nonresident license fees).

The exception to the general rule is the source of the statute’s constitutional infirmity, which can be cured consistent with the severance rules by striking Minn. Stat. § 97C.501, subd. 4(a), so as to eliminate the exporting minnow-hauler’s license altogether; we further strike the attendant fee provision, Minn.Stat. § 97A.475, subd. 28(1).

Henceforth, nonresidents and residents desiring to transport minnows within and out of Minnesota will obtain the same minnow-dealer’s license currently required of all “persons” pursuant to Minn.Stat. § 97C.501, subd. 2, and will pay the license fee established for minnow dealers by Minn.Stat. § 97A.475, subd. 26. Nonresidents will continue to obtain the exporting minnow-hauler’s license described in Minn. Stat. § 97C.501, subd. 4(b). We believe this licensing scheme will preserve the legislature’s intent to protect Minnesota’s aquaculture and wildlife without discriminating against interstate commerce. We therefore reverse appellant’s convictions for failing to obtain the license required by Minn.Stat. § 97C.501, subd. 4(a).

DECISION

The district court did not err by concluding that appellant had no grounds upon which to assert the affirmative defense set forth in Minn.Stat. § 97A.255, subd 2(a) (2000).

Because the 12-hour permit required of all persons to transport minnows through the state pursuant to Minn.Stat. § 97C.515, subd. 2 (2000), is constitutional, and because appellant failed to obtain such a permit, the convictions arising from his violations of that statute are affirmed. Because the provision requiring an exporting minnow-hauler’s vehicle license, MinmStat. § 97C.501, subd. 4(b) (2000), is constitutional, and because appellant failed to obtain such a license, the convictions arising from his violations of that statute are affirmed.

By imposing a differential license fee that favors resident minnow haulers and exporters over their nonresident counterparts, MinmStat. §§ 97A.475, subd. 28(1), 97C.501, subd. 4(a) (2000) discriminate against interstate commerce in violation of the Commerce Clause. We therefore sever those subdivisions from the remainder of the statute, with the result that nonresidents and residents alike will henceforth obtain minnow-dealer’s licenses pursuant to Minn.Stat. § 97C.501, subd. 2 (2000). As to the two convictions arising from appellant’s violations of MinmStat. § 97C.501, subd. 4(a), the judgment of the district court is reversed.

Affirmed in part and reversed in part.


source: Caselaw Access Project

author: ROBERT H. SCHUMACHER, Judge.

license: Public Domain

text:
    CITIZENS FOR A BALANCED CITY, et al., Appellants, v. PLYMOUTH CONGREGATIONAL CHURCH, Defendant, Plymouth Church Neighborhood Foundation, Respondent, City of Minneapolis, Respondent.
    No. A03-190.
    Court of Appeals of Minnesota.
    Dec. 2, 2003.

      Michael 0. Freeman, DeAnne M. Hil-gers, Courtney M. Rogers, Lindquist Ven-num, P.L.L.P., Minneapolis, for appellants.
    Mary Cullen Yeager, Deborah J. Mac-kay, Faegre Benson, L.L.P., Minneapolis, for respondent Plymouth Church Neighborhood Foundation.
    Jay M. Heffern, Minneapolis City Attorney, Carol E. Lansing, Assistant City Attorney, Minneapolis, for respondent City of Minneapolis.
    Considered and decided by KLAPHAKE, Presiding Judge; SCHUMACHER, Judge; and PORITSKY, Judge.

       Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

ROBERT H. SCHUMACHER, Judge.

Citizens for a Balanced City and numerous individuals (collectively Citizens) appeal from the district court’s summary judgment, which found that respondent City of Minneapolis had not acted arbitrarily, capriciously, or unreasonably in granting respondent Plymouth Neighborhood Church Foundation a spacing ordinance waiver, a conditional use permit, and a maximum occupancy variance. We affirm.

FACTS

In early 2001, the Foundation, a faith-based-non-profit organization, purchased an abandoned 140-bed nursing home located at 1920 LaSalle Avenue. The Foundation intended to convert the space into the “Lydia House,” a supportive housing facility, consisting of 40 efficiency apartments designed as permanent homes for adult men and women who are currently homeless or living in temporary shelters and are disabled because of mental illness, chemical dependency, or HIV/AIDS. The Foundation considered 1920 LaSalle a prime location because Plymouth Congregational Church is located across the street and already operates related programs, the proposed residents currently reside in the area, and Simpson Housing Services — the supportive services provider — is in close proximity. The Foundation considered the location unique and did not believe an acceptable alternative location existed.

Because the proposed location was within an Office Residence 2 zoning district, the Foundation was required to obtain relief from certain zoning ordinances before proceeding. First, supportive housing is allowed in an Office Residence 2 zoning district as a conditional use, which requires a permit from the city. Second, a new supportive housing facility must be located at least a quarter-mile from certain types of existing facilities. There is no procedure for obtaining a variance from this spacing requirement. Third, the Foundation must obtain a variance from Minneapolis because Lydia House would be serving more than 82 residents.

At least seven facilities of the type covered by the spacing requirement currently exist within a quarter-mile of 1920 LaSalle Avenue. Those facilities include (1) 180 Degrees Inc., a community correctional facility; (2) People Incorporated Nancy Page Program, a community residential facility; (3) Oak Grove Residential Treatment, a community residential facility; (4) NU Way House, a community residential facility; (5) Home Away for Girls, a community residential facility; (6) Project Foundation, a community residential facility; and (7) Children’s Residential Treatment, a community residential facility. None of these seven facilities appear to offer permanent housing to Lydia House’s proposed residents.

In 2001, Foundation filed an application for a conditional use permit and a maximum occupancy variance and sought a spacing ordinance waiver, alleging the Fair Housing Amendment Act prevented the application of the spacing ordinance in this instance. Area neighborhood organizations sponsored the Lydia House Task Force to evaluate the potential impact Lydia House might have on the neighborhoods. The task force concluded Lydia House would have a detrimental impact and submitted a report to the city planning department stating the conditional use permit, variance, and waiver should not be granted. The planning department prepared a report detailing the facts and arguments the city planning commission should consider.

The commission reviewed the Foundation’s application and the planning department’s report and held public hearings. At the conclusion of the final hearing, the commission voted to grant a spacing ordinance waiver as a reasonable and necessary accommodation under the Fair Housing Amendment Act, to grant the conditional use permit, to grant the maximum occupancy variance, and to adopt the planning department’s findings of fact.

Citizens appealed’ the planning commission’s decision to the Minneapolis City Council. In November 2001, a public hearing was held before the city council’s zoning and planning committee. The committee subsequently recommended that the city council deny the appeal and directed staff to prepare findings of fact. The city council unanimously adopted these findings and denied the appeal. Included in these finding was a conclusion that the Fair Housing Amendment Act mandated Minneapolis grant a spacing ordinance waiver because it was a necessary, reasonable accommodation for disabled persons.

Following the city council’s decision, Citizens appealed to the Hennepin County District Court. The parties submitted cross-motions for summary judgment. In January 2003, the district court granted the Foundation’s motion for summary judgment.

ISSUES

1. Do Citizens have standing to challenge Minneapolis’s zoning decisions?

2. Was Minneapolis’s grant of a spacing ordinance waiver to the Foundation a reasonable action required by the Fair Housing Amendment Act?

3. Was Minneapolis’s grant to the Foundation of a conditional use permit and a maximum occupancy variance reasonable?

ANALYSIS

1. Minneapolis challenges Citizens’ standing to challenge its zoning decisions arguing Citizens has not complied with general standing doctrine and that they are not “aggrieved persons” under Minn.Stat. § 462.361, subd. 1 (2002). When a party does not have standing, a court does not have jurisdiction to hear the matter. Annandale Advocate v. City of Annandale , 435 N.W.2d 24, 27 (Minn.1989) (stating standing is essential to court’s exercise of jurisdiction). Because standing is essential to a justiciable controversy, standing can be raised at any time. See Lucio v. Sch. Bd. of Indep. Sch. Dist. No. 625, 574 N.W.2d 737, 739 n. 2 (Minn.App.1998), review denied (Minn. Apr. 30, 1998).

Standing is acquired when a party has suffered some “injury-in-fact” or when a party is the beneficiary of some legislative enactment granting standing. State by Humphrey v. Philip Morris Inc., 551 N.W.2d 490, 493 (Minn.1996). Standing to address zoning decisions is statutorily granted. Minn.Stat. § 462.361, subd. 1. The statute provides:

Any person aggrieved by an ordinance, rule, regulation, decision or order of a governing body or board of adjustments and appeals acting pursuant to sections 462.351 to 462.364 may have such ordinance, rule, regulation, decision or order, reviewed by an appropriate remedy in the district court, subject to the provisions of this section.

Id. (emphasis added). Because standing is statutorily defined in this case, Minneapolis’s reliance on “general standing doctrine” or “injury-in-fact” analysis is misplaced. See Philip Morris Inc., 551 N.W.2d at 495.

The proper focus for a standing determination under Minn.Stat. § 462.361 is whether the party seeking review is an “aggrieved” person. A person is “aggrieved” when a municipality’s action adversely “operates on his rights of property or bears directly upon his personal interest.” Stansell v. City of Northfield, 618 N.W.2d 814, 819 (Minn.App.2000) (quotation omitted), review denied (Minn. Jan. 26, 2001). Additionally, a party must allege “particularized injuries” to his or her property rights or personal interests. Id.

Here, Citizens alleged the following harms would result from Minneapolis’s actions:

(1) [A] hyper-concentration of those with mental illness or chemical dependency rising to the level of one-third of the population in the defined neighborhood^]
(2) [EJrosion of the neighborhood’s well-established diversity[;]
(3) [I]ncreased crime and behavior requiring police intervention. Block patrols have experienced difficulty recruiting patrol walkers as a result of the existing level of crime and threatening conditions. The addition of Lydia House increases the population needing protection from crime and threatening conditions and increases the likelihood of incidents requiring police intervention[;]
(4) [Ijncreased resources from those living and working within the defined neighborhood, in particular to assist a project that has been poorly organized and developed by a group lacking experience and expertise in providing for this population!; and]
(5) [Deterrence of positive new business development, deterrence of retaining current businesses and deterrence of families moving into the neighborhood, resulting in a decline in the livability of the neighborhood and an increase in blight. This includes the loss of the Turtle Bread development at Nicollet and Franklin subsequent to ... [Minneapolis’s] granting of the waiver for Lydia House.

These statements demonstrate particularized injuries to Citizens’ rights of property or their personal interest. We conclude Citizens is an aggrieved person under Minn.Stat. § 462.361, subd. 1 and therefore, has standing to challenge Minneapolis’s zoning decision.

2. It is undisputed that the proposed residents of Lydia House are disabled, Lydia House is a supportive housing facility requiring a spacing ordinance waiver, the Fair Housing Amendment Act applies to municipal zoning ordinances, and Minneapolis determined the Fair Housing Amendment Act required them to grant a waiver because it was a reasonable and necessary accommodation for disabled persons. But Citizens argue the district court erred in finding the federal Fair Housing Amendment Act of 1988 to Title VIII of the Civil Rights Bill required a spacing ordinance waiver for Lydia House as a necessary and reasonable accommodation.

Zoning determinations are not “traditional” civil appeals. See Northwestern College v. City of Arden Hills, 281 N.W.2d 865, 868 (Minn.1979). When reviewing a zoning determination, appellate courts review directly the municipality’s determination without any regard for the district court’s conclusions. Id. “The standard of review in all zoning matters is whether the local authority’s action was reasonable.” St. Croix Dev., Inc. v. City of Apple Valley, 446 N.W.2d 392, 397 (Minn.App.1989), review denied (Minn. Dec. 1, 1989). A municipality’s determination is reasonable when the stated reasons for its decision are legally sufficient and have a factual basis. Northwestern College, 281 N.W.2d at 868. Interpretation of a federal statute, however, is a question of law reviewed de novo. Vezina v. Best W. Inn Maplewood, 627 N.W.2d 324, 328 (Minn.2001); Cimarron Vill. v. Washington, 659 N.W.2d 811, 815 (Minn.App.2003). Therefore, this court will review de novo what the Fair Housing Amendment Act requires, but we will review Minneapolis’s decision to grant the waiver only to determine if it had a legally sufficient and factual basis.

The Fair Housing Amendment Act provides that it is unlawful

(f)(1) To discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of—
(A) that buyer or renter
(B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or
(C) any person associated with that person.
(2) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of—
(A) that person; or
(B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or
(C) any person associated with that person.

42 U.S.C. § 3604(f) (2000). Unlawful discrimination includes “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodation may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” Id. at (3)(B).

The parties provide extensive federal case law addressing numerous conflicts between zoning ordinances and the Fair Housing Amendment Act. This court is bound by decision of the Minnesota Supreme Court and the United States Supreme Court. Jendro v. Honeywell, Inc., 392 N.W.2d 688, 691 n. 1 (Minn.App.1986), review denied (Minn. Nov. 19, 1986). We are not, however, bound by any other federal courts’ opinion, even when interpreting federal statutes. Northpointe Plaza v. City of Rochester, 457 N.W.2d 398, 403 (Minn.App.1990), aff'd 465 N.W.2d 686 (Minn.1991). Although not binding, these other federal court opinions are persuasive and should be afforded due deference. Id. at 403^04.

Citizens argue this court should adopt the reasoning of Familystyle of St. Paul, Inc. v. City of St. Paul, 923 F.2d 91 (8th Cir.1991), and hold the Fair Housing Amendment Act does not apply to ordinances that are rationally related to legitimate state interests. We conclude Fami-lystyle does not address the Fair Housing Amendment Act’s unambiguous language that failure to provide a necessary, reasonable accommodation is unlawful discrimination. See 42 U.S.C. § 3604(f)(3)(B) (2000). Rather, we find Oconomowoc Residential Programs, Inc. v. City of Milwaukee, 300 F.3d 775 (7th Cir.2002) to be a more well reasoned opinion, consistent with the Fair Housing Amendment Act’s plain language and choose to follow that reasoning.

The test of whether an accommodation is reasonable is a “highly fact-specific inquiry” that requires balancing of the parties’ needs. Oconomowoc, 300 F.3d at 784. To find an accommodation reasonable it must be capable of producing desirable results and must not impose undue financial or administrative burdens. Id. The cost analysis includes both financial and administrative costs and burdens. Id. When considering a waiver to zoning ordinances, the accommodation must not be “so at odds with the purposes behind the rule that it would be a fundamental and unreasonable change.” Id. (quotation omitted).

Necessary is defined as “[n]eeded to achieve a certain result or effect; requisite.” The American Heritage College Dictionary 911 (3d ed. 2000). In the context of the Fair Housing Amendment Act, “necessary” requires “a showing that the desired accommodation will affirmatively enhance a disabled [person’s] quality of life by ameliorating the effects of the disability.” Oconomowoc, 300 F.3d at 784 (quotation omitted). This means the zoning ordinance cannot “give disabled people less opportunity to live in certain neighborhoods than people without disabilities.” Id. (emphasis added, quotation omitted).

We conclude the Fair Housing Amendment Act requires a waiver of a zoning ordinance if the waiver is capable of producing desirable results while not imposing undue financial or administrative burdens on the municipality and is needed to allow disabled people the same opportunity to live in a certain neighborhood as people without disabilities.

Having determined when a reasonable accommodation is necessary under the Fair Housing Amendment Act, we next consider whether that requirement was a legally insufficient basis for Minneapolis to grant a spacing ordinance waiver. The Minneapolis Code of Ordinances provides:

Supportive housing shall be located at least one-fourth (1/4) mile from all existing supportive housing and from all of the following uses ...
a. Community correctional facility
b. Community residential facility
c. Inebriate housing
d. Motel
e. Overnight shelter.

Minneapolis, Minn., Code of Ordinances § 536.20, Supportive housing (1) (2003). But the code also requires “these regulations shall not be applied so as to prevent the city from making reasonable accommodation as required by the Federal Fair Housing Amendment Act of 1988.” Id. at § 520.80 (2003). Furthermore, we conclude the unambiguous language of the Fair Housing Amendment Act requires a city to make reasonable accommodation in its generally applicable zoning ordinances when the accommodation is necessary to give a handicapped person equal opportunity to use and enjoy a dwelling. See 42 U.S.C. § 3604(f)(1), (3)(B). Therefore, the requirements of the Fair Housing Amendment Act are a legally sufficient basis to grant a waiver.

We now analyze the record to determine if a significant factual basis exists for finding the spacing ordinance waiver was reasonable accommodation and was necessary to afford Lydia House’s proposed residents an equal opportunity to use and enjoy a dwelling.

The city council’s findings of fact detail both why the waiver is reasonable and why it is necessary. The city council found the waiver was reasonable because it “will not impose a financial or administrative burden on the City. [And Lydia House] ... will not fundamentally alter the City’s land use or zoning scheme.” The city council reached this conclusion based on the following facts:

a. The vast majority of housing units in the surrounding area are multiple-family, rental housing. The zoning of the surrounding area allows for high-density residential use. Conversion of the former 140-bed nursing home into an apartment building with 40 efficiency units is compatible with the surrounding residential uses.
b. There are several businesses, supportive service uses, and cultural and recreational uses in the area. The supportive services associated with the [Foundation] facility will also be compatible with uses in the surrounding area.
c. Assertions that either the existing eight facilities that are relevant to the ½ mile spacing requirement for [the Foundation], or the proposed [Foundation] facility, have or will have a detrimental effect on crime levels, property values, development activity, business vitality or the stability of the area are unsubstantiated by the evidence in the record of this matter.
d.The impact of an additional supportive housing facility in this ⅛ mile area is mitigated by the existing population density, the prevalence of multiple-family residential dwellings in the area, and the fact that three of the eight existing facilities are separated from 1920 LaSalle by Interstate 94.

The city council concluded the waiver was necessary because:

a. On-site supportive services are necessary to help residents with disabilities and a history of homelessness to maintain physical and mental health, employment security, and independent living status. (This section also includes a footnote that states if the services were provided off-site the spacing requirement would not apply).
b. Supportive housing for “permanent” tenancy (as opposed to shelters or transitional housing) is a relatively new concept and is not widely available in [Minneapolis]. The [Foundation] proposal will help fill a need for permanent supportive housing options.
c. It is expected that many of the prospective tenants will be people who are currently living in temporary housing in the neighborhood. The [Foundation] facility will provide an opportunity for permanent housing in this neighborhood for these and other individuals.
d. The proposed facility is directly across the street from Plymouth Congregational Church and [the Foundation] offices, which will make management of the LaSalle facility more efficient and effective and which will enhance the opportunity for community building opportunities between the housing residents and sponsoring organizations.
e. The proximity of 1920 LaSalle to [Minneapolis’s] central business district, community retail services, several major bus lines, recreational and cultural venues, and government and social service providers is important to the viability of this housing facility for tenants in need of those types of services and who are expected to rely heavily on public transportation.
f. The assertion that the establishment of the proposed [Foundation] facility at 1920 LaSalle is not in the best interests of the prospective residents due the number of other people receiving supportive services in the area and because they are perceived to be “vulnerable” to criminal activity in the area is unsubstantiated in the record for this matter.

These facts support Minneapolis’s finding that the a waiver of the spacing ordinance was a reasonable accommodation necessary to afford Lydia House’s proposed residents an equal opportunity to use and enjoy a dwelling.

Based on the municipality’s record and our interpretation of the Fair Housing Amendment Act, we conclude its decision is legally sufficient and has a factual basis. Minneapolis’s decision to grant the Foundation a spacing ordinance waiver for Lydia House is reasonable and must be affirmed.

3. Citizens argue the grant of a conditional use permit was arbitrary, capricious, and unreasonable because they presented sufficient evidence that Lydia House would be detrimental to the public health, safety, comfort, or general welfare and therefore, they argue, granting the permit does not conform to Section 525.340 of the Minneapolis Code of Ordinances. A municipality’s decision to grant or deny a conditional use permit or variance is a quasi-judicial decision that should be afforded great deference. Honn v. City of Coon Rapids, 313 N.W.2d 409, 416-17 (Minn.1981). On appeal from a grant of a conditional use permit or variance, this court reviews the zoning action to determine whether the decision was reasonable. Id. at 417.

“[D]enial of a conditional use must be based on something more concrete than neighborhood opposition and expressions of concern for public safety and welfare.” Chanhassen Estates Residents Ass’n v. City of Chanhassen, 342 N.W.2d 335, 340 (Minn.1984). Once an applicant meets the requirements for granting a conditional use permit, “approval of a permitted use follows as a matter of right.” Id.

Here, supportive housing is permissible in an Office Residence 2 zoning districts so long as the “use complies with all other applicable provisions of this ordinance.” Minneapolis, Minn., Code of Ordinances § 547.30(c), Table 547-1 (2003). The property at 1920 LaSalle is in an Office Residence 2 zoning district, and Lydia House is a supportive housing facility. Therefore, it is a permitted use. Lydia House produced sufficient evidence for Minneapolis to make all the necessary findings, which it did when it adopted the findings of the planning department and explicitly incorporated the planning department’s report by reference. The requirements for granting a conditional use permit were met and approval followed as a matter of right. The grant of the conditional use permit is affirmed.

The Minneapolis Code of Ordinances limits supportive housing units to 32 residents. Id. at § 536.20, Supportive housing (2) (2003). Minneapolis may grant a variance for this occupancy limit if specific findings are made. Id. at § 525.500 (2003). Citizens argue there are no valid findings in this case because they are not in writing and do not have “reasonable support.” But Minneapolis’s findings of fact incorporated by reference the planning department’s findings on both the conditional use permit and the variance. The planning department’s report details the basis for each finding required by Section 525.500 of the Minneapolis Code of Ordinances. Minneapolis held a public hearing and received substantial correspondence both for and against the granting of the variance. The record in this case supports a conclusion that the city council’s grant of the variance was reasonable.

DECISION

Minneapolis determined it must grant the Foundation a spacing ordinance waiver because the Fair Housing Amendment Act required the waiver as a reasonable accommodation necessary to provide disabled persons equal opportunity to reside in a certain neighborhood. The Fair Housing Amendment Act’s requirements are a legally sufficient ground to grant such a waiver and Minneapolis’s had a factual basis to conclude the waiver was a reasonable accommodation necessary to afford Lydia House’s proposed residents equal opportunity to reside in this neighborhood. Further, Minneapolis granted the Foundation a conditional use permit and a maximum occupancy variance under the Minneapolis Code of Ordinances after conducting public hearings. Minneapolis’s grant of the waiver, permit, and variance was reasonable. We affirm the district court’s grant of summary judgment.

Affirmed.

      . The Foundation applied for the conditional use permit, maximum occupancy variance, and the spacing ordinance waiver in 2001. The Minneapolis Code of Ordinances was reenacted in 2003. The current language in the Code appears to be identical to the ordinances in effect at the time of the Foundation’s application.


author: SABERS, Justice. ZINTER, Justice

text:
    2003 SD 133
    Connie PHEN, Plaintiff and Appellee, v. PROGRESSIVE NORTHERN INSURANCE COMPANY d/b/a Progressive Insurance Company, Defendant and Appellant.
    No. 22648.
    Supreme Court of South Dakota.
    Argued Aug. 26, 2003.
    Decided Nov. 12, 2003.

      Matthew T. Tobin, Steven M. Johnson of Johnson, Heidepriem, Miner, Marlow and Janklow, Sioux Falls, for plaintiff and ap-pellee.
    William A. May of Costello, Porter, Hill, Heisterkamp, Bushnell and Carpenter, Rapid City, for defendant and appellant.
   SABERS, Justice.

[¶ 1.] Connie Phen made a claim against an uninsured motorist provision in her contract of insurance with Progressive Northern Insurance Company (Progressive). Progressive denied the claim and Phen brought suit to force payment of the claim. Phen also alleged that Progressive acted in bad faith when it denied her claim. After hearing cross motions for summary judgment, the circuit court granted 1) Phen’s motion and directed Progressive to pay the $25,000 limit under its uninsured motorist provision. The circuit court denied 2) Progressive’s motion for summary judgment on the bad faith issue finding that there was sufficient evidence to put the question before a jury. In an amended order, the court directed entry of final judgment pursuant to SDCL 15-6-54(b). Progressive appeals both issues. We affirm Issue 1 and reverse Issue 2.

FACTS

[¶ 2.] The parties have stipulated to the facts. On July 4, 2001, Connie Phen was seriously injured when the motorcycle she was on was struck by a vehicle. The motorcycle was owned and driven by Guy Koppinger. Lynne Peterson was driving the other vehicle and her negligence was the proximate cause of Phen’s injuries. Peterson was uninsured. Koppinger’s motorcycle was insured by Financial Indemnity Company (Financial) and in October 2001, Financial paid Phen its uninsured motorist policy limit of $25,000.

[¶ 3.] Phen’s injuries led to approximately $100,000 in medical bills. She sustained injuries to her leg, internal organs and her back. Phen was in the hospital for almost two months and missed over two months of work. After recovering $25,000 from Financial, Phen made a claim for the $25,000 policy limit under her uninsured motorist benefit with Progressive. Progressive denied the claim based on an exclusion under the policy’s “Part III Uninsured/Underinsured Motorist Coverage,” Exclusion l.e. Under the exclusion, coverage is not provided for injury sustained by any person while using or occupying:

a vehicle, other than a covered vehicle, if uninsured motorist coverage or underin-sured motorist coverage applicable to such vehicle is available.

A “covered vehicle” is defined as a vehicle owned by Phen. This type of “other insurance” clause was deemed void as against public policy in Westphal v. Amco Ins. Co., 87 S.D. 404, 209 N.W.2d 555 (1973). The policy also included an “anti-stacking” clause which provided:

The Limits of Liability under this Part III shall not be added to or stacked upon any uninsured motorist coverage or underinsured motorist coverage applying to other motor vehicles to determine the amount of coverage available to an insured person who sustains bodily injury in any one accident.

[¶ 4.] Phen brought suit to determine whether the policy exclusions violate public policy and are therefore void. Phen also argued that Progressive acted in bad faith when it denied her claim. The court granted Phen’s motion for summary judgment on the policy exclusion and directed Progressive to pay $25,000. The court denied Progressive’s summary judgment motion on Phen’s claim of bad faith. Progressive appeals raising two issues:

1. Whether Progressive’s “other insurance” clause violates public policy.
2. Whether the circuit court properly denied Progressive’s motion for summary judgment on Phen’s claim of bad faith.

We affirm the circuit court on Issue 1 and reverse on Issue 2.

STANDARD OF REVIEW

[¶ 5.] The standard of review for summary judgment is well established. We determine whether a genuine issue of material fact exists and whether the circuit court correctly applied the law. Nickerson v. American States Insurance, 2000 SD 121, ¶ 7, 616 N.W.2d 468, 470 (quoting Manuel v. Wilka, 2000 SD 61, ¶ 17, 610 N.W.2d 458, 462 (additional citations omitted)).

[¶ 6.] Because an insurance policy is a contract, the parties are bound to its terms and insurance companies are allowed, subject to statutory constraints, to limit their liability and impose conditions upon their obligation to pay. Miller v. Queen City Fire Ins. Co., 47 S.D. 379, 383-84, 199 N.W. 455, 456 (1924) (quoting Powers v. Travelers’ Ins. Co., 186 N.C. 336, 119 S.E. 481 (1923)). However, the conditions and limitations imposed by the insurance company must be consistent with public policy and the insurance company is liable if it acts in bad faith in denying claims.

[¶7] 1. WHETHER PROGRESSIVE’S “OTHER INSURANCE” CLAUSE VIOLATES PUBLIC POLICY.

[¶ 8.] Progressive contends that the Court should prohibit Phen from “stacking” her uninsured motorist benefits atop those she has already collected from Financial. Phen counters that 1) in proceeding under both policies she is not stacking the policies and 2) the “other insurance” clause in her policy with Progressive is void because it violates public policy.

[¶ 9.] The term “stacking,” in insurance law has varying definitions, but for the purpose of this case, stacking,

arises where the same claimant and the same loss are covered under multiple policies, or under multiple coverages contained in a single policy, and the amount available under one policy is inadequate to satisfy the damages alleged or awarded. In essence, stacking describes the phenomenon of insureds or claimants against them adding all available policies together to create a greater pool in order to satisfy their actual loss.

12 Lee R. Russ <& Thomas F. Segalla, Couch on Insurance § 169:4 (3d Ed. 1999). Phen is attempting to collect coverage for the same claimant and the same loss from two different policies and therefore, contrary to her contention, this case involves the stacking of insurance claims or policies.

[¶ 10.] The trial court relied on this Court’s decision in Westphal in granting summary judgment to Phen on the ground that the other insurance clause is void because it violates public policy. In West-phal, this Court adopted the holding of Safeco Insurance Company of America v. Jones, which provided:

We hold that our statute sets a minimum amount for recovery, but it does not place a limit on the total amount of recovery so long as that amount does not exceed the amount of actual loss; that where the loss exceeds the limits of one policy, the insured may proceed under other available policies; and that where the premiums have been paid for uninsured motorist coverage, we cannot permit an insurer to avoid its statutorily imposed liability by its insertion into the policy of a liability limiting clause which restricts the insured from receiving that coverage for which the premium has been paid.

Westphal, 87 S.D. at 410-411, 209 N.W.2d at 559 (quoting Blakeslee v. Farm Bureau Mutual Ins. Co. of Mich., 388 Mich. 464, 475, 201 N.W.2d 786, 792 (1972) (quoting Safeco Insurance Company of America v. Jones, 286 Ala. 606, 614, 243 So.2d 736, 742 (1971))).

[¶ 11.] Progressive argues that Westphal no longer represents the public policy of this state because the Legislature has never codified the holding and because the Legislature subsequently enacted anti-stacking laws. Progressive failed to show that Westphal no longer represents public policy. We affirm the trial court on this issue and hold that the “other insurance” clause of the policy is void in this circumstance.

[¶ 12.] This Court has consistently noted that the Westphal holding remains sound. See Nickerson, 2000 SD 121, ¶ 18, 616 N.W.2d at 473, n. 5; Union Insurance Co. v. Stanage, 454 N.W.2d 736, 739 (S.D.1990); Cunningham v. Western Cas. Sur. Co., 90 S.D. 530, 532, 243 N.W.2d 172, 173 (1976). However, since Westphal, the uninsured motorist statute has been amended. The version of SDCL 58-11-9 at issue in Westphal provided:

No policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto in limits for bodily injury or death set forth in 32-35-17, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles ... because of bodily injury, sickness or disease, including death, resulting therefrom; provided, that the named insured shall have the right to reject such coverage[.]

(Emphasis supplied.) SDCL 58-11-9 now provides in pertinent part:

No policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance, or use of a motor vehicle may be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state, except for snowmobiles, unless coverage is provided therein or supplemental thereto in limits for bodily injury or death equal to the coverage provided by such policy for bodily injury and death, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom. However, the coverage required by this section may not exceed the limits of one hundred thousand dollars because of bodily injury to or death of one person in any one accident and, subject to the limit for one person, three hundred thousand dollars because of bodily injury to or death of two or more persons in any one accident, unless additional coverage is requested by the insured.

SDCL 58-11-9 (emphasis supplied). As the emphasized language suggests, there have been two relevant changes in the statute since Westphal was decided.

First, uninsured motorist coverage is now mandatory whereas before the insured had the option of rejecting coverage. Second, the coverage required by the statute cannot exceed $100,000 unless the insured specifically requests additional coverage. Progressive asserts that these changes remove the underpinnings of the Westphal decision. However, this Courts writings have taken these modifications into account and do not appear to have changed the holding of Westphal. We will address each amendment separately.

[¶ 13.] The language in the statute that made uninsured motorist coverage mandatory was inserted in 1972. Progressive argues that in Westphal the insured had a choice whether to obtain uninsured motorist protection and that choice justified the Court’s holding that stacking should be allowed “where the premiums have been paid for uninsured motorist coverage.” Westphal, 87 S.D. at 411, 209 N.W.2d at 559 (quoting Blakeslee, 388 Mich, at 475, 201 N.W.2d at 792 (quoting Safeco, 286 Ala. at 614, 243 So.2d at 742)). Progressive asserts that once the coverage became mandatory, the significance of the fact that the insured paid premiums for the coverage “diminished considerably.” In support of this argument, Progressive cites Nickerson, 2000 SD 121, ¶ 15, 616 N.W.2d at 471 which stated:

Premiums for uninsured motorist coverage are charged on each vehicle merely to cover the increased risk. Therefore, premiums are paid for the insured’s “protection” that she will be guaranteed a minimum recovery. The fact that premiums are paid for the coverage is not the conclusive determination that the insured is entitled to the full amount of coverage without deduction. In other words, the insured who contracts for [underinsured motorist] coverage is contracting for the assurance that he will be able to recover, at a minimum, an amount equal to the [underinsured motorist] coverage. This right of recovery applies when the insured has uncompensated damages up to the [underinsured motorist] policy limits without regard to the number of policies, vehicles or the amount of premiums paid.

(Internal citations omitted.) What Progressive neglects to mention about Nick-erson is that this Court specifically distinguished Westphal in Nickerson and reiterated, the Westphal holding is sound[.] Nickerson, 2000 SD 121, ¶ 18, 616 N.W.2d at 473, n. 5. Furthermore, in Westphal, the Court clearly considered uninsured motorist coverage mandatory. The Court accepted and adopted the reasoning of the Michigan Supreme Court in Blakeslee, which noted:

The language of the statute is plain, unambiguous and mandatory ... Stated in the affirmative, every policy must have this coverage. Only after the mandatory offer is made can the insured reject it in writing. Nowhere in the statute does the legislature attempt to fix any maximum amount of recovery less than the amount of the loss. The lack of pro ration language in the statute is conspicuous and can only weigh in favor of an inference of allowing stacking recovery.

Westphal, 87 S.D. at 410, 209 N.W.2d at 558-559 (quoting Blakeslee, 388 Mich, at 473, 201 N.W.2d at 791). The Court clearly believed that the language of the statute was mandatory. Therefore, Progressive’s argument that the mandatory nature of the current statute requires a different result is unpersuasive.

[¶ 14.] This Court has also addressed the addition of the $100,000 limit on the amount of uninsured motorist coverage which is automatically written into policies without the insureds request for additional coverage. In Union Insurance Co. v. Stanage, the Court explained:

This modification of the statute reflects a legislative determination that the maximum amount set forth in the statute is sufficient to protect those insureds who may be legally entitled to recover against an uninsured motorist.

Union Insurance Co. v. Stanage, 454 N.W.2d 736, 739 (S.D.1990). The Court went on to hold that an insurer may limit its total liability to the maximum amount in a subsequent policy issued to the same insured as long as the limitation was stated in the policies in clear and unambiguous terms. Id. This interpretation of the policy behind SDCL 58-11-9 was reaffirmed by the Court in Nickerson, 2000 SD 121, ¶ 18, 616 N.W.2d at 473, n. 5.

[¶ 15.] This Courts interpretation of the uninsured motorist statute in Westphal and subsequent decisions appears to be that an insured is allowed to stack insurance policies up to the $100,000 statutory maximum unless the insured has requested greater coverage. However, the insured may not collect an amount greater than his or her actual loss. See Westphal, 87 S.D. at 410, 209 N.W.2d at 558-559; Union Ins. Co., 454 N.W.2d at 739; Nickerson, 2000 SD 121, ¶ 18, 616 N.W.2d at 473, n. 5. Therefore, according to our cases discussing uninsured motorist insurance, Westphal is still sound and Phen is entitled to stack her $25,000 policy limit in her contract with Progressive onto the $25,000 she has received from Financial.

[¶ 16.] As Progressive correctly asserts, the Legislature has created several anti-stacking statutes since 1973. However, not one of these statutes addresses our holding in Westphal. For example, when the Legislature enacted the under insured motorist provision in 1975, it specifically limited the amount the insured could recover to “the difference of the policy limits on the vehicle of the party recovering or such smaller limits as he may select less the amount paid by the liability insurer of the party recovered against.” 1975 Session Laws, ch 315-2. The statute has been modified but retains specific language limiting the amount of recovery in an underin-sured motorist claim to the “limits on the vehicle of the party recovering less the amount paid by the liability insurer of the party recovered against.” SDCL 58-11-9.5. It is significant that there is no parallel limitation on recovery under the statutory provisions for uninsured motorist protection.

[¶ 17.] In 1986, the Legislature directly addressed the issue of stacking in three statutes. First, an insured may not add their uninsured motorist coverage to their underinsured motorist coverage to determine the limit of coverage for an injured person for any one accident. SDCL 58-11-9.7.

[¶ 18.] Next, an insured may not add together the limit of liability for underin-sured motorist coverage for two or more of the insureds vehicles to determine the limit of coverage available to an injured person for any one accident. SDCL 58 — 11— 9.9.

[¶ 19.] Finally, SDCL 58-11-9.8 prohibits an insured from adding together the limits of liability for uninsured motorist coverage for two or more of the insureds vehicles to determine the limit of coverage available to an injured person for any one accident. SDCL 58-11-9.8.

[¶ 20.] It is clear that the Legislature is aware of the concept of stacking and that in certain circumstances the Legislature has specifically prohibited stacking. By enacting SDCL 58-11-9.8, the Legislature has even gone so far as to codify this Court’s decision in Cunningham which held that although the Court’s decision in Westphal was sound, the Court would not expand it to allow an insured to stack his own uninsured motorist coverage of two vehicles. Cunningham v. Western Cas. Sur. Co., 90 S.D. 530, 534, 243 N.W.2d 172, 174.

[¶ 21.] Had the Legislature determined that “other insurance” clauses were in accord with public policy in this type of circumstance, it clearly could have addressed the issue in one of the numerous changes and additions to the uninsured and underinsured motorist statutes. The Legislature has chosen to allow the rule of Westphal to stand, and this Court has consistently noted that the holding is sound. The trial court did not err in relying on Westphal to grant summary judgment to Phen. Furthermore, to the extent that the anti-stacking clause attempts to prohibit the insured from collecting under the policy when other uninsured motorist coverage is available, it also violates public policy.

[¶ 22.] The Legislature has clearly enunciated a public policy of requiring insurers to provide uninsured motorist coverage to every insured in the state. A policy clause that purports to eliminate an insurance company’s liability under an uninsured motorist provision violates that public policy. This is especially true where, as in this case, the insurance company would completely escape any liability whenever there is any other applicable insurance available, regardless of the amount available or the damages sustained by the insured. The trial court is affirmed on Issue 1.

[¶ 23.] 2. WHETHER THE TRIAL COURT PROPERLY DENIED PROGRESSIVE’S MOTION FOR SUMMARY JUDGMENT ON PHEN’S CLAIM OF BAD FAITH.

[¶ 24.] In order to establish that an insurance company acted in bad faith in denying a claim, the insured must show an absence of a reasonable basis for denial of policy benefits [or failure to comply with a duty under the insurance contract] and the knowledge or reckless disregard [of the lack] of a reasonable basis for denial. Stene v. State Farm Mut. Auto. Ins. Co., 1998 SD 95, ¶ 19, 583 N.W.2d 399, 403 (citing Walz v. Fireman’s Fund Ins. Co., 556 N.W.2d 68, 70 (S.D.1996)). An insurance company is entitled to challenge claims which are fairly debatable and will be found liable only where it has intentionally denied (or failed to process or pay) a claim without a reasonable basis. Id.

[¶ 25.] The simple fact that Progressive asserted a policy defense is insufficient grounds upon which to find a genuine issue of material fact as to whether it acted in bad faith. The stipulated facts do not present a genuine issue of material fact but raise a legal question as to whether the facts constitute bad faith. In this instance, this is clearly a legal question to be determined de novo. In the thirty years since Westphal, changes in the un-derinsured motorist statutes and our cases regarding the same could lead a reasonable insurer to believe that Westphal no longer represented the public policy of this state. Indeed, the trial court even indicated that he felt the law in this area was “a little murky.” Because the question whether the policy exclusion was void was fairly debatable, we hold that the trial court improperly denied Progressive’s summary judgment motion on Phen’s claim of bad faith.

[II26.] GILBERTSON, Chief Justice, and MEIERHENRY, Justice, concur.

[¶ 27.] KONENKAMP and ZINTER, Justices, concur in result.

ZINTER, Justice

(concurring in result).

[¶ 28.] I agree that Westphal controls this appeal, and Westphal invalidates Progressive’s policy clauses that prohibit the stacking of coverage. I concur in result only because I part company with the Court’s conclusion that our decisions since Westphal continue to reflect a public policy against “anti-stacking” exclusions in uninsured motorist insurance policies. In my view, Progressive correctly points out that this Court’s more recent decisions reflect a public policy permitting such exclusions as long as the statutorily required minimum uninsured motorist coverage is provided. Nevertheless, I concur in result because Westphal remains the law of this State, and that decision invalidates Progressive’s anti-stacking exclusions.

[¶ 29.] There is no dispute that “[t]he Legislature has clearly enunciated a public policy of requiring insurers to provide uninsured motorist coverage to every insured in the state.” Supra ¶ 22. Therefore, I agree that, to the extent that Progressive’s exclusionary clauses “purport[] to eliminate an insurance company’s liability under an uninsured motorist provision,” they violate the public policy as expressed in Westphal Id.

[¶ 30.] However, I disagree with the Court’s conclusion that anti-stacking provisions also violate public policy as expressed in “our precedent since Westphal. ...” Supra n. 2 and ¶ 15. On the contrary, Progressive presents a colorable case that public policy, as expressed in our decisions after Westphal, permits anti-stacking provisions as long as the insured is provided the minimum limits of coverage.

[¶ 31.] A state’s public policy “is not static, but may change as the relevant factual situation and the thinking of the times change.” American Home Assurance Co. v. Cohen, 815 F.Supp. 365, 370 (W.D.Wash.1993) (quoting Brown v. Snohomish County Physicians Corp., 120 Wash.2d 747, 845 P.2d 334, 338 (1993)). We have also recognized “[t]hat a policy [is] reflected by the established trend ... of the decisions of the courts.... ” Bartron v. Codington County, 68 S.D. 309, 323, 2 N.W.2d 337, 343-44 (1942). Consequently, Progressive correctly argues that we must examine our more recent decisions reflecting the public policy underlying the uninsured motorist statutes.

[¶ 32.] This Court’s decisions after Westphal reflect that the uninsured motorist statutes are not intended to provide the insured with a full recovery for the amount of actual loss when that loss exceeds the statutorily required coverage. Instead our more recent decisions indicate that:

The purpose of the uninsured motorist statutes is to provide the same insurance protection to the insured party who is injured by an uninsured or unknown motorist that would have been available to [the insured] had [the insured] been injured as a result of the negligence of a motorist covered by the minimum amount of liability insurance.

Canal Ins. Co. v. Abraham, 1999 SD 90, ¶ 29, 598 N.W.2d 512, 519 (emphasis added) (quoting American Family Mut. Ins. Co. v. Merrill, 454 N.W.2d 555, 559 (S.D.1990) (quoting Clark v. Regent Ins. Co., 270 N.W.2d 26, 29 (S.D.1978))). Therefore, this Court’s more recent pronouncements have specifically indicated, in different contexts, that deductions for other coverage are permitted in uninsured/un-derinsured motorist policies. For example, this Court has stated that these insurance premiums are paid for a guaranteed “minimum recovery. The fact that premiums are paid for the coverage is not the conclusive determination that the insured is entitled to the full amount of coverage without deduction.” Nickerson, 2000 SD 121, ¶ 15, 616 N.W.2d at 471 (emphasis added). More to the point, Cunningham specifically declined to extend Westphal beyond its particular facts, holding that “we see nothing in SDCL 58-11-9 which requires the stacking of the policy coverages for two separate vehicles. The insureds got exactly what the policy said they would.” Id., 90 S.D. at 533, 243 N.W.2d at 174.

[¶ 33.] Under these post -Westphal pronouncements, Progressive correctly points out that we have not held that the uninsured coverage statute (SDCL 58-11-9) requires stacking. Indeed, there is nothing in the language of SDCL 58-11-9 that even suggests the existence of a public policy requiring stacking. Therefore, if public policy does not require stacking, it is difficult to argue that public policy prohibits anti-stacking contracts of insurance. As we noted in Bartron:

Until firmly and solemnly convinced that an existent public policy is clearly revealed, a court is not warranted in applying the principle under consideration. It has been well said, “that the right of private contract is no small part of the liberty of the citizen, and that the usual and most important function of courts of justice is rather to maintain and enforce contracts than to enable parties thereto to escape from their obligation on the pretext of public policy, unless it clearly appear that they contravene public right or the public welfare.”

Id., 68 S.D. at 323, 2 N.W.2d at 344 (quoting Baltimore & Ohio Southwestern Ry. Co. v. Voigt, 176 U.S. 498, 505, 20 S.Ct. 385, 387, 44 L.Ed. 560, 565 (1900)).

[¶ 34.] Were there any lingering doubt about this Court’s current pronouncements on this subject, Union Ins. Co. clearly held that stacking could be prohibited when it would result in a recovery in excess of the statutory amount set forth in SDCL 58-11-9. Id., 454 N.W.2d at 739-40. This Court specifically noted that a non-aggregation (anti-stacking) clause could be considered in determining that Union’s limits of liability did not exceed the statutory amount. Id. at n. 3. This Court reasoned that a clause limiting liability to the statutory amount required by uninsured motorist statutes was permitted because it satisfied the legislative policy expressed in the statute. Id. at 739-40.

[¶ 35.] Thus, a number of our decisions after Westphal have upheld anti-stacking provisions, and none have concluded that anti-stacking provisions violate public policy. Id.; see also Cunningham, 90 S.D. at 532, 243 N.W.2d at 173 (plaintiffs could not stack the uninsured motorist limits of one vehicle onto the limits of the vehicle in which their decedents were actually riding when the accident occurred); Nickerson, 2000 SD 121, 616 N.W.2d 468 (passenger could not recover excess UIM benefits from her insurer because she had already recovered a total of $100,000 from the tortfeasor and the primary UIM carrier, an amount that equaled the policy limit on her excess UIM coverage).

[¶ 36.] In light of our recent precedent, I cannot join the majority’s conclusion that “our precedent since Westphal compelfs]” the conclusion that anti-stacking provisions violate public policy, supra n. 2, or that “[t]his Court’s ... subsequent decisions” allow the insured to stack coverage. Supra ¶ 15. On the contrary, were we to review Progressive’s anti-stacking provisions based only upon our decisions since Westphal, we would most likely reach a different result.

[¶ 37.] Nevertheless, I concur in result because of the strength and breadth of the Westphal language, the substantial legislative activity restricting stacking in closely related areas while not restricting it in Westphal scenarios, and the fact that the Legislature has failed to abrogate West-phal despite its active involvement in this area for thirty years.

[¶ 38.] In my view, the analysis of Progressive’s anti-stacking clauses begins and ends with Westphal. Initially, it must be noted that Westphal’s analysis was not restricted to a review of “other insurance” clauses. The clause construed included “other insurance” and “anti-stacking” concepts. That conclusion is evident from the Westphal holding:

[T]hat ‘other insurance’ provisions, whether in the form of a ‘pro rata,’ ‘excess insurance,’ ‘excess-escape,’ or other similar clause, are invalid as a part of uninsured motorist protection, on the ground that the statute requiring every liability policy to provide this type of protection will not permit the insurer to provide in any way that the coverage will not apply where other insurance is also ‘available,’ despite the fact that the insured may thus be put in a better position than he would be in if the other motorist were properly insured.

Westphal, 87 S.D. at 408, 209 N.W.2d at 557 (emphasis added).

[¶ 39.] Thus, this broad language of Westphal applies to both of the Progressive clauses. Moreover, were there any question about the strength of that holding, it must be remembered that it has been repeatedly reaffirmed. Supra ¶ 12. It must finally be remembered that West-phal specifically rejects the rule advocated by Progressive here; i.e. the notion:

[T]hat the design and purpose of uninsured motorist statutes are to provide protection only up to the minimum statutory limits for bodily injuries, and not to provide the insured with greater insurance protection than would have been available had he been injured by an insured motorist, and have held that such ‘other insurance’ provisions are valid where they do not reduce coverage below the minimum statutory limits.

Id., 87 S.D. at 408, 209 N.W.2d at 557-58. Westphal also observed that:

Nowhere in the statute does the legislature attempt to fix any maximum amount of recovery less than the amount of the loss. The lack of pro ration language in the statute is conspicuous and can only weigh in favor of an inference of allowing stacking recovery.

Id., 87 S.D. at 410, 209 N.W.2d at 559 (emphasis added).

[¶ 40.] Although these pronouncements are in direct conflict with this Court’s more "recent precedent, Westphal’s fundamental precepts have not been abrogated despite thirty years of legislative activity restricting stacking in this area. Consequently, until changed by the Legislature, Westphal remains the law of the State, and its broad language invalidates Progressive’s “other insurance” and “anti-stacking” provisions.

[¶ 41.] I therefore concur in result on Issue 1 and concur on Issue 2.

[¶ 42.] KONENKAMP, Justice, joins this special writing.

      . There are other forms of stacking in insurance law and by defining stacking this way for the purpose of this case, we do not intend to restrict the definition so that it does not apply in other contexts.

      . A review of this Court’s holdings regarding underinsured motorist coverage accounts for Progressive’s belief that Phen should only be entitled to collect up to the amount she bargained for with Progressive. See e.g. Union Ins. Co., 454 N.W.2d 736; Nickerson, 2000 SD 121, 616 N.W.2d 468; Cunningham, 90 S.D. 530, 243 N.W.2d 172. This Court has consistently and clearly held that an insured may not stack underinsured coverage to amounts greater than the amount contracted. This makes this case difficult because essentially it holds that a motorist is better off being injured by an uninsured motorist than by an underinsured motorist because he or she may stack coverage. However, the legislative enactments and our precedent since Westphal compel this result in an uninsured motorist case unless this Court would overturn Westphal and disregard the absence of a pro ration requirement in the uninsured motorist statute.

      . The Westphal provision stated:
      Other Insurance: With respect to bodily injury to an insured while occupying an automobile not owned by the principal named insured, the insurance under this endorsement shall apply only as excess insurance over any other similar insurance available to such insured and applicable to such automobile as primary insurance, and this insurance shall then apply only in the amount by which the limit of liability for this coverage exceeds the applicable limit of liability of such other insurance.

        Id., 87 S.D. at 406, 209 N.W.2d at 556 (emphasis added).