author: PORITSKY, Judge.

text:
    Timothy S. YEH, et al., Respondents, v. COUNTY OF CASS, State of Minnesota, Respondent, Gullview Association, Inc., Defendant, Gullview Associates, LLP, Individually and doing business as Gullview Resort, Appellant.
    No. A04-1454.
    Court of Appeals of Minnesota.
    May 17, 2005.

      John H. Erickson, Erickson, Pearson & Aanes, Brainerd, MN, for respondents Yeh and Kirkhn.
    Paul D. Reuvers, Jason J. Kuboushek, Iverson Reuvers, LLC, Bloomington, MN, for respondent Cass County.
    Eric J. Magnuson, Peter Gray, Rider Bennett LLP, Minneapolis, MN, for appellants Gullview Assoc, et al.
    Paul J. Sandelin, Sandelin Law Office, Pequot Lakes, MN, for appellants Gull-view Assoc, et al.
    Considered and decided by MINGE, Presiding Judge; WRIGHT, Judge; and PORITSKY, Judge.
   OPINION

PORITSKY, Judge.

This appeal arises from a dispute over the Cass County Environmental Services Department’s (ESD) issuance of building permits to appellant-developer Gullview LLP for construction of three cabins on the property of the former Gullview Resort (Gullview), and from appellant-developer’s installation of docking space for 18 boats at Gullview. The district court reversed a pair of decisions made by the Cass County Board of Adjustment (BOA), which would have allowed appellant to continue construction on the three cabins and to retain its current docking system.

On appeal, appellant-developer argues that (1) the BOA’s decision is not per se arbitrary and capricious; (2) the district court’s ruling is inconsistent with Town of Grant v. Washington County, 319 N.W.2d 713 (Minn.1982), and thus, should be reversed; (3) the district court should not have construed Cass County’s Shoreland Ordinance and, in any event, construed it wrongly; (4) the BOA’s decision to withhold judgment on the docking issue was not arbitrary and capricious and, even if it was, Cass County should be estopped from ordering removal of the docks; (5) appellant-developer’s request for approval of its docking system was automatically approved under. Minn.Stat. § 15.99 (2002); (6) appellant-developer’s completion of substantial construction before the revocation of the permits gave it a vested interest in the construction; and (7) the district court erred in dismissing appellant-deveL oper’s cross-claim against the county.

FACTS

Appellant purchased the former Gull-view Resort in 1999. At the time, Gull-view consisted of eight cabins, an owner’s residence, and three docks that could accommodate 22 to 30 boats. Under the Cass County Shoreland Ordinance, the former Gullview Resort was considered a commercial use. Appellant subsequently applied for a conditional use permit to develop Gullview and two neighboring lots into a residential planned unit development (PUD) with 21 units. But appellant withdrew its application at some point in late 1999, after conferring with Cass County’s Environmental Services Department (ESD)/

In January 2000, appellant submitted an application for a commercial PUD, consisting of 14 units on the former Gullview property only. And on January 13, 2000, the Cass County Planning Advisory Commission (PAC) voted to deny appellant’s application because it did not satisfy certain criteria in Cass County’s Shoreland Ordinance.

On July 25, 2000, appellant submitted a preliminary site plan to Paul Fairbanks (Fairbanks) of the ESD, showing the addition of 6 new cabins on the Gullview property. The additional cabins were to be located in “Tier 1,” “Tier 2,” and “Tier 3” of the property' — the “Tier” designation referring to their proximity to the shore of Gull Lake. Appellant planned for 6 “Tier 1” cabins (3 original and 3 new), 6 “Tier 2” cabins (5 original and 1 ;new), and 2 “Tier 3” cabins (both new). Appellant submitted construction and sewage permit applications for all 14 units on October 26, 2000. The sewage permits were issued on December 5, 2000.

On June 13, 2001, appellant submitted applications for building permits for units 9, 10, and 11 (all in Tier 1) to the ESD. And on July 5, 2001, appellant submitted building permit applications for units 12 (Tier 2), 13, and 14 (both in Tier 3). The ESD issued building permits for units 9 and 10 only on July 12, 2001.

On each building permit application, appellant checked the box labeled “Resort cabin, RY, mobile home,” which is located under the “Commercial” category-heading. Because the previous use of Gullview Resort was a resort, if appellant’s use were in fact a resort, appellant’s PUD would not be a conversion, and appellant would be allowed to proceed “over-the-counter,” without a public hearing.

Meanwhile, on July 20, 2001, a cooperative, Gullview Association, was formed, which acquired ownership of Gullview. On July 31, 2001, appellant-developer submitted a check to Cass County for Gullview’s 2001 lodging license. And the sale of individual cabins began in August 2001.

On August 2, 2001, appellant sent a letter to Fairbanks of the ESD. The letter states, “[i]n accordance with our discussion of today, I am providing you with this information to document the basis upon which I have been proceeding with the installation of new infrastructure and obtaining building permits for the Gullview Resort.” Appellant’s letter outlines the analysis of the Shoreland Ordinance that led to its self-determination that it should be classified as a resort, and states, in conclusion,

[t]his is not a conversion of the resort to a residential planned unit development; no land is being reclassified to the residential use category. Gullview will continue to operate as a resort, with individuals who will own each unit in the resort and have their units rented through the resort association’s manager.

In an apparent response to Fairbanks’ request for a legal opinion, the Cass County Attorney’s office issued a letter to Fairbanks on September 10, 2001. The letter states, in relevant part:

I had earlier reviewed the materials you provided my office and had concluded that the addition of five (5) new units at the Gull View Resort does not require additional platting procedures, etc. under Shoreland Ordinance Section 9.2 which allows for the expansion of an existing PUD with six (6) or less new dwellings [sic] units to expand providing the project does not exceed the allowable densities as provided by the ordinance. Gull View Resort as an existing resort is an existing commercial PUD. The organization of the Gull View Resort is a community interest community under Minn.Stat. § Chap. 515B and in no way changes this status because said organization qualifies as a “cooperative.”

The ESD subsequently issued the remaining building permits — for units 11, 12, 13, and 14 — on November 16, 2001.

The record indicates that, after the issuance of the remaining building permits' and during the construction of the new units, opposition from surrounding landowners mounted, as did pressure on Fairbanks and the ESD regarding Gullview’s status as a “resort.” Appellant sent Fairbanks a letter on May 13, 2002, stating:

As you know, Gullview Resort has a license to operate as a resort for the year 2002 season. At the present time, Gullview has four units available for rental, one efficiency unit (Unit No. 4) and three 3-bedroom units (Unit Nos. 1, 5, and 11). Our understanding of the Cass County Ordinance is that in order to be considered as a resort, Gullview must maintain a minimum of three units available for rental.
Gullview’s resort rental season will run from Saturday, June 1, 2002 through Saturday August 31, 2002. Gullview’s resort guests will be solicited via Gullview’s website and through inquiries made through the Brainerd Chamber of Commerce, which is our principle source of reservation.

Appellant’s letter also included Gullview’s Association Bylaws and an example of the Proprietary Lease executed by each member of the Association.

Appellant asserts that, amidst the' increasing pressure on the ESD regarding Gullview’s “resort” status, Fairbanks orally agreed to the installation of new docks at Gullview — providing space for 18' boats — based on the fact that the former Gullview Resort had dock space for 22 boats. Appellant installed the new docks on May 4, 2002. And on June 5, 2002, appellant sent a letter to Fairbanks stating, “[i]t was represented to me at the time of sale that the docks could handle 22. average size boats. We have now completed the installation of eighteen slips on two docks and have reduced the docking/slip capacity of the resort, rather than increasing it.”

On June 8, 2002, Fairbanks sent a letter to appellant revoking the building permits for units 12, 13, and 14, and reducing the number of allowable dock spáees. The letter states, in relevant part:

As we discussed last year, an existing resort is allowed to expand by up to six units provided that the density for such expansion is available. The expansion I approved was done with the understanding that the expansion was to be part of an upgrade of Gullview Resort. The assumption on my part was the individual resort cabins would be available to the public on a short time basis, be it for a summer season, a week, a month, or a night for that matter.
However, the more I observe the marketing efforts directed at selling the units, rental is an after thought at best.... The chances of owners renting their obviously luxurious, well designed, and well constructed homes is slim at best.

Fairbanks stated further that “[t]he permits for the units in tier three are null and void,” and “[s]ix units, including the office will be allowed in tier two,” but “[tjhree of the units will be for rental use only.” Regarding the docking situation, Fairbanks stated that “[e]ach unit will be allowed a slip for one watercraft. The rental units will be allowed one slip for three watercraft. The rental slips will be for day use only. Trailer in and trailer out.”

Appellant and appellant’s counsel responded to Fairbanks by letters dated July 8, 2002, and indicated an intent to appeal the ESD’s decision to the Cass County BOA. Appellant’s counsel also apparently met with Fairbanks and an assistant county attorney in late July. And, on August 1, 2002, appellant’s counsel sent a letter to the same assistant county attorney stating, “[a]s I understand it ... Paul Fairbanks would like you to review the information [appellant] and I indicated we would provide in advance of the Board of Adjustment hearing, for purposes of resolving the appeal.” The letter also asserts that “[g]iven the information that is and has been provided, there can be no other conclusion than Gullview Resort meets the definition of a resort pursuant to the Ordinance,” and that “revocation of or a refusal to issue the remaining permits can only be viewed as an arbitrary action of the County.”

In response, the assistant county attorney issued a letter to Fairbanks on August 9, 2002. The letter states, in relevant part:

I have reviewed materials sent to me by [appellant], which are to be provided to the Cass County Board of Adjustment at its appeal hearing.... Said documents indicate the Gull View Resort operations with four units offered for rental are: advertised on the internet at www.gull-view.com and that Gull View is a member of the Brainerd Chamber of Commerce as a source of rentals.... It would appear that under the definition provided by the Shoreland Ordinance at Section 3.0, Gull View Resort is in fact a resort. While it may appear from advertising materials, etc. that there is an intent to sell residential premises and that this is the weight of the endeavor as opposed to rental to transients, the fact remains that Gull View Resort meets the definition of the resort as provided by our ordinance.

Based on the county attorney’s opinion, the ESD reinstated the building permits for units 12, 13, and 14, and agreed to allow the new docks to remain. The permits were formally reinstated on October 14, 2002.

On November 9, 2002, respondents Yeh and Kirklin (respondents) appealed the ESD’s decision to the Cass County BOA. And on December 9, 2002, the BOA heard them appeal.

At the hearing, respondents stated that “[c]ommercial or residential PUD is the key here. It’s — the question really is not whether it’s a resort or not, because resort is a label that can be hung on anything. The question is whether it’s commercial or residential in character.” Respondents also asserted that, as a result of appellant’s use of the “resort” designation,

there is a conversion occurring with respect to the former Gullview Resort which must be a conversion done pursuant to a residential planned unit development conditional use permit process, allowing the public to participate in the decision making rather than as is the case now, in effect, an end run being done — attempted—by over-the-counter permits being issued by the planning administrator.

Respondents submitted a lengthy appendix, which the BOA acknowledged receiving. And respondents recapped the history of appellant’s attempts at rezoning the property, including the various exchanges described above. Respondents also pointed out that, despite appellant’s claims, “[t]here haven’t been any renters for the past couple of years.” Finally, respondents argued that because there are five units in Tier 1 at Gullview, docking for only five boats should be allowed under the Shoreland Ordinance, section 9.64.

A representative from the Department of Natural Resources (DNR) also testified that Gullview appeared to be a residential development. He stated, “I guess the bottom line is we feel that [appellants] should have gone through the conditional use process, and one of the end results of that process would have been a restriction in the number of dock units ... to the number of units in the first tier.”

Respo'ndent-Kirklin presented a series of pictures to the BOA, and described the former Gullview Resort and its docks, versus the current Gullview entity and its docks.

Appellant then began its argument with a question: “Is it a resort,, or isn’t it a resort?” And appellant stated, while “it may appear from advertisement materials, et cetera ... that there is an intent to sell residential premises and that this is the way that they endeavor as opposed to rental to transients.... The fact remains that Gullview Resort meets the definition of the resort as provided by the ordinance.” Appellant also noted that “[t]he docking ...' is a side issue.... The ultimate issue here is whether or not this is a resort.” And appellant asserted that the BOA must “stick with what the county attorney’s office is telling Mr. Fairbanks, and that is it’s a resort.” Finally, appellant argued that Gullview was operating as a resort — he stated that “[rjenters of units will be allowed a boat slip, and there will be housekeeping services provided. There will be on-site management. There is a lodging license.” And he stated, in conclusion, “[y]ou can try to pretend that it’s something other than a- resort, but it is a resort, because it meets the criteria that are laid out in your ordinances.”

After hearing a number of other arguments similar to those noted above, three BOA-members spoke. The first member stated:

I think what they have done to this piece of property is pretty despicable, and it’s what we thought would happen.... I think the appropriate voice for this to be resolved is in a court of law. I don’t really think that this board is in the best position to do that. I believe that [Fairbanks] acted as best he could with the advice that he had from the county attorney. And also that we must keep in mind that our legal advisor is also the county attorney. And so therefore, I don’t see that we really have any choice at this point but to uphold [Fairbanks’] decision.

The BOA’s chairman concurred and stated:

I have to agree with Sue here. I do believe if I was in [Fairbanks’] position I would have done the same thing. Because- my attorney would have advised me I made a mistake. But there seems to be so many other questions beyond that right now that I feel that this probably should end up in a court of law. We are not lawyers sitting up here. We’re far from it. From what I’ve heard today, though, I do think that it has to be done in a court of law, the rest of this. Now there is a question of whether it’s commercial or residential PUD, or whether it’s a resort. It’s still up in the air. I think the thing that we’re here today for, one thing is to uphold or deny ... what [Fairbanks’] done here.

The third and final BOA-speaker stated the following:

This is going to wind up in court one way or the other. We can’t even decide what’s a resort here. As far as I’m concerned, I haven’t got any good definition of a resort yet. I don’t know if there is one. That seems to be a big question here.

The BOA then made a motion to uphold Fairbanks’ most recent decision regarding the building permits, and the motion was carried. With regard to the dock issue, the chairman stated:

I don’t think we’re capable up here of answering that question. I think we’re — a court of law will have to make a decision one way or the other on this. I don’t like to see it, but unfortunately I can’t — I couldn’t rule on this anyway, because ... we would have to go to court anyway on one way or the other on this....

Finally, a motion was made that the BOA “not make a decision” on the dock issue, as well as on the issue of whether this case should be “reheard as a residential PUD.” The motion carried.

The BOA subsequently issued written minutes for the December 9, 2002 session. After a brief summary of the arguments, and without making any findings of fact, the BOA’s minutes state:

MS/P MeschfWold/Unanimous to uphold the ESD Director’s decision to reinstate the revoked permits for Units 12, 13, and 14 as based upon the opinion from the County Attorney’s Office to the ESD Director dated 8/6/02.
MS/P Sundberg/Mesch/Uncmimous to take no position as to the slip/dockage and the request to refer the project to the PAC as a residential planned unit development based on the lack of specific reference to either issue in the letter to the ESD Director from the County Attorney’s Office dated 8/6/02.

Respondents subsequently filed suit in the Cass County District Court against appellant and Cass County. The district court reversed the BOA’s decision in its Order dated April 14, 2004, and entered judgment for respondents on May 13, 2004. On July 13, 2004, the district court entered its Order dismissing appellant’s cross-claims against Cass County. This appeal followed.

ISSUES

1. Did the district court err in concluding that’ the Board of Adjustment acted arbitrarily and capriciously in upholding the Environmental Service Department’s decision to reinstate Gullview’s building permits?

2. Did the district court err in its determination that Gullview is a residential rather than a commercial PUD under the terms of Cass County’s Shoreland Ordinance?

3. Did the district court err in concluding that the Board of Adjustment acted arbitrarily and capriciously in withholding judgment on the Environmental Service Department’s decision approving Gull-view’s planned dock configuration?

4. Should Cass County be estopped from ordering the removal of the docking system now in place at Gullview?

5. Did Gullview acquire vested rights in construction of Units 12, 13, and 14, and in its dock installation by virtue of the Environmental Service Department’s prior grant of appropriate permits?

6. Did the district court err in dismissing Gullview’s cross-claims against Cass County?

ANALYSIS

I.

1. Standard of Review

Both , parties devote significant effort to arguments regarding the standard of review here. But it is clear that the standard of review to be applied to the BOA’s determination is whether, on the evidence before it, the BOA made a reasonable decision. Town of Grant v. Washington County, 319 N.W.2d 713, 717 (Minn.1982); see also Mohler v. City of St. Louis Park, 643 N.W.2d 623, 630 (Minn. App.2002) (same), review denied (Minn. July 16, 2002). And this court is required to review the BOA’s decision independent of the findings and conclusions of the district court. Town of Grant, 319 N.W.2d at 717 (citing Northwestern College v. City of Arden Hills, 281 N.W.2d 865, 868 (Minn. 1979)).

That said, this court’s reasonableness inquiry must be tempered by a substantial degree of deference. The supreme court has held that courts reviewing decisions of this nature are not to substitute their judgment for that of the decision-making body, VanLandschoot v. City of Mendota Heights, 336 N.W.2d 503, 509 (Minn.1983), and that “[t]he court’s authority to interfere in the management of municipal affairs is, and should be, limited and sparingly invoked.” White Bear Docking & Storage, Inc. v. City of White Bear Lake, 324 N.W.2d 174, 175 (Minn.1982). Accordingly, with this degree of deference in mind, and based upon an independent examination of the record, we must determine whether the BOA’s affirmance of the ESD’s grant of building permits to appellant was reasonable. See VanLandschoot, 336 N.W.2d at 509.

2. Reasonableness of BOA’s action

Appellant first argues that the BOA’s failure to issue findings of fact ⅛ not per se arbitrary and capricious as found by the district court. - Appellant points to the BOA’s “stated reason” for its decision — that it was relying solely on the advice of the county attorney — in support of the proposition that the BOA’s decision was not per se arbitrary and capricious. But we disagree with appellant’s assertion that the BOA “did exactly what was required of it by statute.”

It is correct, as appellant argues, that the only requirement explicitly set forth in section 394.27 is that “[t]he reasons for the board’s decision shall be stated in writing.” MinmStat. § 394.27, subd. 6 (2002). But the BOA is a creature of statute, vested with authority to “hear and decide appeals from and review any order, requirement, decision, or determination made by any administrative official charged with enforcing any ordinance.” Minn.Stat. § 394.27, subd. 5 (2002). We read this grant of authority to carry with it a duty to make and decide appeals in a reasonable manner. See VanLandschoot, 336 N.W.2d at 508. In light of this requirement of reasonableness, we conclude that the range of acceptable conduct allowed BOA’s is not as great as appellants would have it.

Here, the members of the BOA who spoke at the hearing indicated an unwillingness to decide this case based on then-own analyses. See Swanson v. City of Bloomington, 421 N.W.2d 307, 312-13 (Minn.1988) (stating “that a district court should establish the scope and conduct of its review of a municipality’s zoning decision by considering the nature, fairness and adequacy of the proceeding at the local level and the adéquacy of the factual and decisional record of the local proceeding”). In fact, all three BOA members who spoke expressed their belief that this was a mátter “for the court” to decide. Also, while appellant contends that the BOA’s reliance on' the county attorney’s recommendation should hold some legal force, it appears from the record that this reliance was borne out of a desire by the BOA to have the courts rule on the issue, rather than out of a belief that the county attorney’s interpretation of the Shoreland Ordinance was the correct one. Accordingly, we find that the action of the BOA here cannot be deemed reasonable and, thus, we affirm the district court’s decision.

3. The district court’s finding that there is a “lack of any rationale for the BOA’s decision”

Appellant also argues that the district court erred in finding that there is a “lack of any rationale for the BOA’s decision.” But appellant’s argument here ignores this court’s duty to determine the reasonableness of the BOA’s action based on the record below, without deference to the district court’s findings. See VanLandschoot, 336 N.W.2d at 509. As stated above, we have concluded that the BOA’s action was not reasonable, and, while appéllant may dispute the technical reasons for the district court’s analogous findings, this argument bears little weight here.

4. Appellant’s reliance on Town of Grant

Appellant argues further that the supreme court’s decision in Town of Grant should have precluded the district court from reversing the BOA’s decision here. In Town of Grant, a district court reversed Washington County’s BOA on appeal, and substituted its own conclusions regarding expert opinions on the viability of a sewage disposal system, for the conclusions of the BOA. 319 N.W.2d at 717. The supreme court eventually reversed the district court’s decision, stating:

The standard of review remains whether on the evidence before it, the Board reached a reasonable decision. We are compelled to conclude that it did so on the basis of the opinions of appellant’s experts, who were convinced that the proposed system was feasible and also would protect the environment.
These opinions, although countered by opinions to the contrary, in our view furnish substantial evidentiary support for the Board’s findings.... It was the function of the Board to determine which of the expert opinions to accept, and since those expressed by appellant’s witnesses furnish substantial support for the Board’s findings, we are compelled to conclude that the trial court erred in setting them aside.

Id. Appellant relies on this language for the proposition that the BOA here relied on expert findings, but this reliance is misguided. The supreme court, in Town of Grant, describes a BOA hearing where both sides presented expert factual testimony and the BOA, while admittedly not an expert on the subject, chose one side and issued a decision in reliance on that side’s experts. The district court then reversed the BOA’s decision, substituted its own judgment for that of the BOA, and ruled in favor of the opposite side. The situation here is distinguishable.

Here, the members of the BOA who spoke at the hearing stated that they did not feel comfortable making a decision and that such a decision should be made by a court 'of law. There is also no indication in the BOA’s written decision that any of the evidence presented was even considered. The issue before the BOA was an issue of, law, as opposed to the factual dispute resolved by the board in Grant. The expert (an assistant Cass County attorney) on whom the BOA relied did not attend the hearing and was not subject to cross-examination. We further note that the assistant county attorney, in drafting his letter, relied only on material submitted by appellants and by appellant’s counsel. Thus, it is clear that here, unlike the case in Town of Grant — where a district court reversed the BOA’s judgment regarding conflicting expert testimony and substituted its own— this court is faced with a BOA that failed to consider any evidence and was determined not to pass judgment on the issues. The procedure followed by the BOA here is so far removed from the procedure followed in Town of Grant that Grant is of no help to appellant on this issue.

II.

Appellant, while maintaining its argument that the district court had no right to construe the provisions of the Shoreland Ordinance, argues alternatively that the court erred when it construed the ordinance and concluded that Gullview is a residential development.

As we have noted, before appellant acquired Gullview Resort, the property was a commercial use. At issue here is whether, under the Shoreland Ordinance, Gullview is a commercial PUD, or whether it is a residential PUD as the district court determined. Given that different consequences result from whichever definition applies, Gullview cannot be both a ■ commercial and residential PUD. That is, if it is a commercial PUD, the Shoreland Ordinance would allow it to proceed with,its construction plans without a public review process. See Shoreland Ordinance 9.2 (“Planned unit developments must be processed as a conditional use, except that an expansion to an existing commercial PUD involving six (6) or less new dwelling units or sites ... can be a permitted use”). But if Gullview is a residential PUD, then it.is subject to public oversight. See Shoreland Ordinance 9.7. Appellant styled the project as a “resort,” and thus a commercial PUD, and proceeded “over-the-counter” without public review.

In cases where the interpretation of an ordinance is at issue, this court looks to the ordinance itself to determine whether a governmental entity’s decision was unreasonable or arbitrary and capricious. White Bear Docking & Storage, Inc., 324 N.W.2d at 176. And “where the question is whether an ordinance is applicable to certain facts, the determination of those facts is for the governmental authority, but the manner of applying the ordinance to the facts is for the court.” Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W,2d 604, 608 (Minn.1980).

The Shoreland Ordinance defines a “resort” as:

any building, structures, or enclosures kept, used, maintained or advertised as> or held out to the public to be an enclosure where sleeping accommodations are furnished to the public and primarily to those seeking recreation, for periods of one day, one week or longer, and having for rent three or more cottages, rooms, or enclosures.

(Emphasis added.) The ordinance states that a “commercial PUD” means:

Uses that provide transient, short-term lodging spaces, rooms or parcels with operations that are essentially service oriented. These shall include but not be limited to hotel/motel, bed and breakfast ¡accommodations, resorts, recreational vehicle and camping parks, and other primarily service oriented activities.

And the ordinance defines a “residential PUD” as:

A use where the nature of residency is non-transient and the major or primary focus of the development is not service-oriented. ■ For example, residential apartments, manufactured home parks, time-share condominiums, townhouses, cooperatives and full fee ownership residences would be considered as residential planned unit developments. To qualify as a residential planned unit development, a development must contain at least five dwelling units or sites.

(Emphasis added.)

, Appellant points to the definition of “resort” and argues that because, at all times, three cabins have been available for rental by the public, it is a “resort” under the Shoreland Ordinance. Therefore, appellant goes on to argue, because the commercial PUD definition states that it “shall include ... resorts,” the district court erred in concluding that the Gullview is a residential development. We disagree.

Appellant’s argument requires us to consider the definition of “resort” in a vacuum, ignoring other provisions in the ordinance. But “[t]he rules that govern the construction of statutes are applicable to the construction of ordinances,” Smith v. Barry, 219 Minn. 182, 187, 17 N.W.2d 324, 327 (1944), and “a statute is to be construed as a whole so as to harmonize and give effect to all its parts.” Id.; see also Van Asperen v. Darling Olds, Inc., 254 Minn. 62, 74, 93 N.W.2d 690, 698 (1958) (different provisions of the same statute must be interpreted in light of each other).

A clear distinction between a commercial and a residential PUD exists in the first sentence of each definition. A commercial PUD means “[u]ses that provide transient, short-term lodging spaces, rooms or parcels with operations that are essentially service oriented.” But a residential PUD means “[a] use where the nature of residency is non-transient and the major focus of the development is not service-oriented.”

Here, Fairbanks, in his June 8, 2002, letter to appellant, said,

the expansion I approved was done with the understanding that the expansion was to be part of an upgrade of Gullview Resort. The assumption on my part was the individual cabins would be available to the public on a short time basis, .... However, the more I observe the marketing efforts directed at selling the units, rental is an after thought at best.

Moreover, even the assistant Cass County attorney, in concluding that Gullview met the definition of a resort, observed that, “[wjhile it may appear from advertising materials, etc., that there is an intent to sell residential premises and that this is the weight of the endeavor as opposed to rental transients ...” (emphasis added). The county attorney’s observation about “the weight of the endeavor” is supported not only by the advertising materials, etc., but also by the simple fact that out of the 14 units, three are to be available for rental, leaving 11 to be occupied by residents.

Finally, we note that the interpretation espoused by appellant would lead to an absurd result. See Wegener v. Comm’r of Revenue, 505 N.W.2d 612, 617 (Minn.1993) (rejecting statutory construction leading to absurd result). At oral argument, appellant’s counsel was asked if its argument would hold true even where fifty new residences were constructed, so long as at least three were advertised for rental. Appellant’s counsel responded that, under Cass County’s Shoreland Ordinance, it would. This example, while distinguishable from the case at hand, where there are fourteen residences with at least three available for rental, demonstrates the absurdity of appellant’s position: Under appellant’s reasoning, even if a development had 100 units with three for rental to vacationers and 97 units occupied by homeowners, we would still be obliged to call the entire operation “a resort.”

We conclude that Gullview is a residential development within the meaning of the Cass County Shoreland Ordinance. Because Gullview was previously a commercial resort, and appellant’s PUD is residential, appellant is not entitled to proceed over-the-counter and without public oversight. See Mohler, 643' N.W.2d at 634 (finding that the city issued a building permit in violation of its ordinances and directing “the city to take action to enforce the terms of the city’s ordinance”).

III.

Did the district court err when it limited the number of boat slips appellant could install?

Appellant argues that (1) the BOA’s decision to withhold judgment on the dock issue was reasonable; (2) the proposed docking system is allowed by section 9.64 of the Shoreland Ordinance; and (3) when the ESD failed to act on appellant’s request for approval of its docking system within 60 days, the ESD automatically approved the request by operation of Minn. Stat. § 15.99 (2002). Accordingly, appellant argues, the district court erred when it limited the number of boat slips appellant could install.

1. Was the BOA’s decision to withhold judgment on the dock issue reasonable?

As noted above, the BOA is granted the authority to “hear and decide appeals from and review any order, requirement, decision, or determination made by any administrative official charged with enforcing any ordinance.... ” Minn.Stat. § 394.27, subd. 5. With this grant comes the parallel responsibility to exercise that authority. Thus a complete abdication of its decision-making authority is not a reasonable action. See White Bear Docking & Storage, Inc., 324 N.W.2d at 176 (stating that “[t]he setting aside of routine municipal decisions should be reserved for those rare instances in which the City’s decision has no rational basis”).

Appellant argues that the BOA simply relied on an expert (the assistant county attorney) by refusing to make a decision on the dock issue, and this reliance is supported by the supreme court’s decision in Town of Grant. But this argument is belied both by our analysis above and by the record. The three BOA members who spoke at the December 9, 2002 hearing stated in some form or fashion that the issues before them should be decided by a court of law. But they nonetheless affirmed the conduct of the ESD and Fairbanks by stating that they too would have relied on the county attorney’s opinion, without any further consideration of the factual or legal issues involved.

It is hard not to sympathize with persons untrained in the law who are required decide legal issues such as those in this case, but the duties imposed by law on the BOA require decisions that are reasonable. We have concluded that the BOA’s decision to affirm the ESD was unreasonable. We conclude that the BOA’s act in not ruling on the issue of dock expansion is likewise unreasonable.

2. Appellant’s reliance on Section 9.64of the Shoreland Ordinance

Appellant also argues that Gull-view’s dock expansion is allowed by section 9.64of the Shoreland Ordinance.. Section 9.64provides:

The number of spaces provided for continuous beaching, mooring, or docking of watercraft must not exceed one for each allowable dwelling unit or site'- in the first tier (notwithstanding existing mooring sites in an existing commercially used harbor).

(Emphasis added.) Appellant argues that it fits the exception because the original Gullview Resort had dock space for at least 20 boats. Therefore, appellant reasons, installation of dock space for 18 boats is permissible under section 9.64, because the docks are “existing mooring sites in an existing commercially used harbor” and are thus excepted from the “one space for each dwelling in the -first tier” rule. But this argument is premised on the idea that Gullview fits within the definition of a “commercial PUD” under the Shoreland Ordinance. And, as stated above, we have concluded that Gullview is a residential PUD. Accordingly, appellant’s arguments on this issue are without merit.

3. Automatic approval under Minn. Stat. § 15.99

Appellant also argues that, under Minn. Stat. § 15.99 (2002), appellant’s request for approval of its docking system was automatically approved when the ESD failed to deny its request within 60 days. See Minn.Stat. § 15.99, subd. 2 (stating that “an agency must approve or deny within 60 days a written request relating to zoning ... or other governmental approval of an action” and “[fjailure ... to deny a request within 60 days is approval of the request.”). Appellant contends that requests were made on July 8, 2002, when appellant and appellant’s counsel wrote letters to Fairbanks, serving as a notice of appeal and outlining the nature of the appeal, and on August 14, 2002, when appellant wrote a letter to Fairbanks confirming that the ESD would allow dock space for 18 boats.

Cass County arg-ues that appellant did not make this argument to the district court and therefore this court should refuse to address it under the rule stated in Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). As appellant notes in its reply brief to this court, this argument was raised in its Answer and Cross-claim, dated September 22, 2003. Accordingly, this issue is properly raised on appeal.

Cass County also argues that appellant did not make an appropriate “request” under Minn.Stat. § 15.99, and, accordingly, appellant’s argument on this issue is without merit. Appellant’s, July 8, 2002 letter to Fairbanks states in the first paragraph that

[t]his letter, and the enclosed letter ... from Gullview Resort, shall serve as notice of appeal to the Cass County Board of Adjustment of your decision outlined in your letter ... dated June 8, 2002.... The enclosed letter ... outlines a partial summary of the nature of the appeal.... According to the Cass County [Shoreland] Ordinance ... the [BOA] shall hear appeals from the decision of the [ESD],

In that letter, there is no request that Fairbanks approve Gullview’s proposed docking system. Accordingly, we conclude that, rather than a “written request” for “governmental approval of an action” under Minn.Stat. § 15.99, subd. 2, the July 8 letters were notices of appeal. Thus, the July 8, 2002, correspondence to Fairbanks did not start the 60-day period under Minn.Stat. § 15.99.

Appellant argues further that the August 14, 2002 letter is a “request” under Minn.Stat. § 15.99. This letter begins, “[t]his is to confirm our telephone conversation ... wherein you advised me that the permits ... are to be reissued in accordance with the director [sic] of the County Attorney.” It further states, “[a]lso with respect to the docks, this will confirm that you indicated that based upon the Affidavits I provided you ... related to the dock usage are satisfactory and you have agreed to allow the existing docks ... to remain in place.” This letter is also not a request for approval, as it simply confirms a prior telephone conversation.

We conclude that none of the letters was a request that started the 60-day period under Minn.Stat. § 15.99, subd. 2. Given the decisive effect of section 15.99, we are not inclined to expand its operation beyond its clear meaning to include notices of appeal and letters confirming telephone conversations. Accordingly, we reject appellant’s arguments on this issue.

IV.

Appellant argues that, even if this court rejects its other arguments, Cass County should be estopped from requiring that the docking system now in place be removed. Where justice demands, estoppel may be applied against a local government exercising its zoning powers. Ridgewood Dev. Co. v. State, 294 N.W.2d 288, 292 (Minn.1980); see also Mesaba Aviation Div. v. County of Itasca, 258 N.W.2d 877, 880 (Minn.1977). “[Es-toppel is available as a defense against the government if the government’s wrongful conduct threatens to work a serious injustice and if the public’s interest would not be unduly damaged by the imposition of estoppel.” Ridgewood, 294 N.W.2d at 293 (quoting United States v. Lazy FC Ranch, 481 F.2d 985, 989 (9th Cir.1973)). But if there is no wrongful conduct by the government, this court’s inquiry should stop. Id.

In our view, Cass County did not act wrongfully. Initially, the county, through Fairbanks, agreed to allow appellant to install new docks, but it did so on appellant’s representation that the new development would allow Gullview remain as a commercial PUD. When it appeared tp Fairbanks that the development was not as appellant had represented it, he re-ducéd the number of docking spaces that he had earlier approved. By this time, appellant had already installed the docks.

The county’s reversal of its position on the docks was due to appellant’s representation that Gullview would remain a commercial PUD. Given that Gullview was in reality a conversion into a residential PUD, and appellant’s representations misled the county, appellant cannot be heard to say that the county acted wrongfully. Nor can we say that justice requires the imposition of equitable estoppel in favor of appellant. And, ultimately, if the county acts under a final judicial order directing appellant to remove the docks, the county will merely be enforcing its own ordinance. It is well settled that a “municipality cannot be estopped from correctly enforcing [an] ordinance even if the property owner relied to his detriment on prior city action.” Mohler, 643 N.W.2d at 638 (quoting Frank’s Nursery, 295 N.W.2d at 607). As such, appellant’s estoppel argument is without merit.

V.

Appellant next argues that, because substantial construction on units 12, 13, and 14 had been completed and the new docking system had been installed by the time the ESD revoked appellant’s building permits and reduced the number of docks allowed, it acquired a vested right to maintain the buildings and docks. The vested rights doctrine in Minnesota developed to deal with state control over private development through the use of zoning provisions and building permits. Ridge-wood, 294 N.W.2d at 294; see also Hawkinson v. County of Itasca, 304 Minn. 367, 231 N.W.2d 279 (1975). And, in a vested rights analysis, “the court asks whether a developer has-progressed sufficiently with his construction to acquire a vested right to complete it.” Ridgewood, 294 N.W.2d at 294. A right is vested when:

It has arisen upon a contract, or transaction in the nature of a contract, authorized by statute and liabilities under that right have been so far determined that nothing remains to be done by the party asserting it.

Stotts v. Wright County, 478 N.W.2d 802, 805 (Minn.App.1991), quoting.. Jasaka Co., v. City of St. Paul, 309 N.W.2d 40, 44 (Minn.1981) (review denied (Minn. Feb. 11, 1992)). “In zoning cases, the ‘contract’ is the issuance of a building permit, issued in error or later revoked for some reason.” Id.

But the doctrine of vested rights exists to protect developers from changes in zoning laws aimed at frustrating development. See Naegele Outdoor Adver. Co. of Minneapolis v. City of Lakeville, 532 N.W.2d 249, 254 (Minn.App.1995) (holding that, where appellant did not submit permit application until four years after the ordinance in question was amended, appellant had no vested rights), review denied (Minn. July 20, 1995). And “[a] property owner is charged with knowledge of whether a local zoning ordinance permits construction undertaken on the property.” Stotts, 478 N.W.2d at 805.

Here, appellant argues that — no matter what the outcome of the analysis of its classification as a commercial PUD and its actions based on that classification — it now has a vested right to units 12, 13, and 14 and the docks, based on Cass County’s prior grants of building permits and approval of the docking system.

But it is clear from the record that, whether in error or not, Cass County granted appellant approval to expand a resort; it did not approve development of a new residential neighborhood. We note that it was appellant who, on each building permit application for Gullview, checked the box labeled “Resort cabin, RV, mobile home.” This box is located under the “Commercial” category-heading on Cass County’s building permit application form. And, as the ESD’s Fairbanks aptly stated,

As we discussed last year, an existing resort is allowed to expand by up to six units provided that the density for such expansion is available. The expansion I approved was done with the understanding that the expansion was to be part of an upgrade of Gullview Resort.

Accordingly, we find the doctrine of vested rights inapplicable here. See Stotts, 478 N.W.2d at 805 (stating that “the county issued a permit to repair and remodel'the boathouse. It did not issue a permit to build a new building, so Stotts cannot have acquired a vested right to retain his building.”).

VI.

Appellant’s final claim is that the district court erred in dismissing its damages cross-claim against Cass County. Appellant argues that Cass County’s actions here are analogous to those of the City of Minneapolis in Snyder v. City of Minneapolis, 441 N.W.2d 781 (Minn.1989), and, thus, the district court’s decision was in error. But appellant’s argument ignores this court’s decision in Mohler.

In Mohler, this court analyzed a case with a fact-pattern and legal issues similar to those in the present case. The Mohlers sued their neighbors (the Christiansons) and the City of St. Louis Park after the city granted the Christiansons a building permit to construct a two-story garage, and later granted them a variance for the garage. The Christiansons filed a cross-claim against the city, alleging that the city incorrectly measured the garage, claiming the city should be estopped from requiring 'them to change the structure, and asking for damages for the city’s negligent misrepresentation of its zoning ordinance. The district court granted the city’s summary judgment motion as to the Christianson’s cross-claims, and the Chris-tianson’s appealed, arguing that their situation fell under “the narrow exception carved out in Snyder.” Mohler, 643 N.W.2d at 638. This court, in distinguishing Snyder, stated:

The supreme court carved out a “narrow exception” to the rule of discretionary immunity ... and concluded that damages could be recovered in that case because the city’s policy against using publicly dedicated parking to satisfy the ordinance’s off-street parking requirement was an unwritten policy, and thus, the party to whom the permit was issued could not be charged with the knowledge of the illegal nature of his proposed land use.... Unlike Snyder, the ordinance in this case was written; it was signed by the mayor, the city clerk, and the city manager.

Id. It is undisputed that, here, the Shore-land Ordinance in question was both written and validly created. Accordingly, there is no reason to distinguish this court’s ruling in Mohler, and we affirm the district court’s dismissal of appellant’s cross-claims against Cass County.

DECISION

We conclude that the Cass County Board of Adjustment’s decisions were not reasonable. We affirm the district court’s finding that, under the terms of Cass County’s Shoreland Ordinance, Gullview is a residential, rather than a commercial, PUD. And we find no merit in appellant’s arguments that Cass County automatically approved its request for docking space under Minn.Stat. § 15.99 (2002); that Cass County should be estopped from ordering the removal of appellant’s current docking system; and that the doctrine of vested rights should apply here. Finally, we affirm the district court’s dismissal of appellant’s cross-claim against Cass County in accordance with our decision in Mohler v. City of St. Louis Park, 643 N.W.2d 623 (Minn.App.2002), review denied (July 16, 2002).

Affirmed.

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

      . Minn.Stat. 15.99 was amended in the 2003 legislative session; the amendment took effect June 1, 2003, "for requests submitted on or after that date.” 2003 Minn. Laws ch. 41, § 2. At the time the relevant events took place, the 2002 version of the statute was in effect. Because statutes are not to be construed retroactively unless the legislature clearly indicates, Minn.Stat. § 645.21 (2004), the issue is governed by the 2002 version of section 15.99.

      . When the underlying property is referenced, we will refer, to it throughout this opinion as "Gullview.” And, when referring to Gullview LLP or its managing partner, Thomas Stef-fens, we will use "appellant.”

      . As evidence of its resort-oriented activities appellant cites: (1) procurement of a resort license, (2) the advertisement of Gullview as a resort on the internet at www.gullview.com, (3) Gullview’s membership with the Brainerd Chamber of Commerce as a source of rentals, and (4) Gullview’s Bylaws and Proprietary Lease, both of which provide permission for its owners to rent- their respective cabins.


source: Caselaw Access Project

author: ROBERT H. SCHUMACHER, Judge.

license: Public Domain

text:
    Katherine I. LASKA, Appellant, v. ANOKA COUNTY, et al., Defendants, Ginger R. Flohaug, Respondent.
    No. A04-1661.
    Court of Appeals of Minnesota.
    May 17, 2005.

      Cynthia R. Barfell, Heather H. Neu-bauer, Foley Mansfield, P.L.L.P., Minneapolis, MN, for appellant.
    Diane B. Bratvold, Jan M. Gunderson, Rider Bennett, LLP, Minneapolis, MN, for respondent.
    Considered and decided by HUDSON, Presiding Judge; SCHUMACHER, Judge; and MINGE, Judge.
   OPINION

ROBERT H. SCHUMACHER, Judge.

Appellant Katherine I. Laska’s infant daughter Hannah died while napping in a home day care operated by Joyce Jeffrey and staffed, on the day of Hannah’s death, by Jeffrey and her daughter, respondent Ginger R. Flohaug. On appeal from the district court’s judgment dismissing her wrongful-death negligence action against Flohaug, Laska argues the court erred by concluding that Flohaug owed Hannah no duty of care. We reverse the grant of summary judgment and remand for trial on the merits.

FACTS

In 1983, Jeffrey obtained a license from Anoka County to operate a family day care in her home in Coon Rapids. See Minn. Stat. § ch. 245A.03, subd. 1 (2004) (charging commissioner of Minnesota Department of Human Services with licensing of human services programs, including family day care facilities); .16, subd. 1 (authorizing commissioner of human services to delegate authority to counties and private agencies to issue day care licenses). Minn. R. 9502.0367 (2003) establishes child/adult ratios and age-distribution restrictions for different licensing categories; at all times relevant to this appeal, Jeffrey held a class C2 license, which authorizes a single adult to care for 12 children, of whom no more than two may be infants (under 12 months) or toddlers (between 12 and 30 months); of those two, only one may be an infant.

Day-care providers may apply for a periodic variance from compliance with the child/adult ratio and age-distribution restrictions by submitting a written request to the county identifying, among other things, “the specific equivalent alternative measures which the applicant or provider will provide so the health, safety, and protection of children in care are ensured if the variance is granted.” Minn. R. 9502.0335, subp. 8a(A)(4) (2003).

In 1991 and 1992, Jeffrey requested and received variances to allow her to care for extra children during the summer months. As to the “specific alternative measures” she planned to take to ensure the children’s safety, Jeffrey indicated on each request that she would receive caregiving assistance from her daughter, Ginger Jeffrey (now known as Ginger Flohaug), born in 1977. On the 1992 application, Jeffrey wrote that her daughter would “be very happy to have a summer job at home.” No other assistance or alternative measure was indicated on any form. In 1995, Flo-haug moved to Duluth to attend college.

Laska gave birth to Hannah Laska in June 2000. In July Hannah began attending the Jeffrey day care. On August 15, Jeffrey submitted a variance request for the two-week period between August 21 and September 3, when, she wrote, she would have “[one] toddler too many”; that is, of the 12 children in her care, she would have one infant (Hannah), two toddlers (instead of the one permitted pursuant to her C2 license), and nine older children. As she had done previously, Jeffrey referenced her daughter Flohaug — who had recently finished college and planned to move back into Jeffrey’s house on August 20 — as her helper during the variance period. Jeffrey and Flohaug discussed the matter before Flohaug returned home, and Flohaug told her mother she would be “around to help” with the day care. Jeffrey wrote on the variance request: “I will have good, reliable help. My daughter is a [physical education] and health teacher who loves kids.” On August 14, in the course of a relicensing inspection of her home, Jeffrey informed a county social worker that “her adult daughter, Ginger Jeffrey, would be moving home the next week and would be available to help” with the children. The county granted the variance request on August 17.

On August 21, the first effective day of the variance, the conditions in the Jeffrey day care violated the variance in at least three ways: the ratio of children to adults exceeded the ratio permitted by the variance; the ages of the children present violated the age-distribution restrictions established by the variance: instead of one infant and two toddlers, as permitted by the variance, there were in fact two infants and four toddlers present; and the total number of children present — 13—exceeded the total number of children Jeffrey had indicated in the variance request. Flo-haug was present in the home until the late morning, when she left for a job interview; she was absent for between two and three hours.

At about noon, after Flohaug had already left, Laska dropped Hannah off at Jeffrey’s home. At approximately 1:30, Jeffrey took Hannah to the spare room at the rear of the house for a nap. Jeffrey laid Hannah on her stomach on an adult bed on top of a foam-filled comforter. At approximately 2:00, Flohaug returned home and provided general caregiving assistance to her mother. At some point in the afternoon, she helped care for a-toddler who fell in the kitchen and cut her head. Between 2:00 and 2:30, Jeffrey went into the spare bedroom where Hannah was sleeping to retrieve another child who was napping in a crib in the room. Jeffrey did not notice anything unusual about Hannah.

According to the police report filed after Hannah’s death, Flohaug informed the police that “sometime between [3:30 and 4:00] she had gone into the bedroom and that she had heard the baby making some type of crying noise or was just making nondescript noises in general.” This statement is also reflected in the coroner’s report. At her deposition taken nearly four years later, Flohaug testified she never entered the room until approximately 4:30 and denied having made the statement to the officer.

Flohaug maintains she entered the room at approximately 4:30, sat on the bed for approximately 10 minutes watching television, then turned to check on Hannah and saw that the child had “a bluish tinge to the face” and was not breathing. She called for her mother and called 911. The paramedics arrived, attempted unsuccessfully to resuscitate the child, and took her to the hospital, where she was pronounced dead. The coroner’s report states the cause of death as “[pjossible sudden infant death syndrome” and indicates that “[p]rone sleeping condition on an adult-type bed” was a “significant condition” leading to death.

In August 2003, Katherine Laska filed a wrongful-death action against Anoka County, Jeffrey, and Flohaug, alleging as to Flohaug that Flohaug’s negligent care and supervision of Hannah caused the child’s death. Flohaug moved for summary judgment, arguing, among other ♦things, that she owed Hannah no legal duty of care and that she could not have foreseen the harm to Hannah. The district court granted the motion, reasoning “[n]o relationship whatsoever existed between Flohaug and ... Hannah, much less a special relationship. Furthermore, Flo-haug was not present when Hannah was placed on the bed, and there is no evidence that Flohaug foresaw the risk of an infant being on an adult bed when, on her return, she did see Hannah there.”

ISSUE

Did the district court err in granting Flohaug summary judgment on the grounds that Flohaug owed no duty of care to Hannah Laska?

ANALYSIS

Summary judgment is appropriate where the record shows there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. This court reviews a district court’s grant of summary judgment to determine whether there are any genuine issues of material fact and whether the lower court erred in its application of law. H.B. ex reí Clark v. Whitte-more, 552 N.W.2d 705, 707 (Minn.1996). On appeal, we view the evidence in the light jnost favorable to the party against whom summary judgment was granted— Laska — and will resolve any doubts about the existence of a material fact in Laska’s favor. Id.

Flohaug is entitled to summary judgment if the record reflects Laska’s failure to prove any of the four essential elements of the negligence claim: (1) Flo-haug had a legal duty to Hannah to take some action; (2) there was a breach of that duty; (3) the breach of the duty was the proximate cause of the harm to Hannah; and (4) damage. Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn.1995). The district court granted Flohaug summary judgment after concluding she. owed no duty of care to Hannah. The existence of a legal duty is a question of law, which this court reviews de novo. Clark, 552 N.W.2d at 707.-

“A person generally has no duty to act for the protection of another person. The existence of a legal duty to act depends on two factors: (1) the relationship of the parties, and (2) the foreseeability of the risk involved.” Gilbertson v. Leininger, 599 N.W.2d 127, 130 (Minn.1999) (citation omitted). A “special relationship” giving rise to a legal duty to protect another exists where one person has “custody of another person under circumstances in which that other person is deprived of normal opportunities of self-protection.” Harper v. Herman, 499 N.W.2d 472, 474 (Minn.1993). “Typically, the plaintiff is in some respect particularly vulnerable and dependent on the defendant, who in turn holds considerable power over the plaintiffs welfare.” Donaldson v. Young Women’s Christian Ass’n of Duluth, 539 N.W.2d 789, 792 (Minn.1995); cf. Harper, 499 N.W.2d at 474-75 (holding boat owner had no duty to warn social guest that water was too shallow for diving because guest was not vulnerable and had the ability to protect himself).

A special relationship may arise when one individual’s safety has in some way been entrusted to another and that the other has accepted that entrustment. Erickson v. Curtis Inv. Co., 447 N.W.2d 165, 168 (Minn.1989); cf. Whittemore, 552 N.W.2d at 708-09 (concluding that the manager of a trailer park did not have a special relationship with children who were abused by another resident of the trailer park because the manager rejected the children’s entrustment and told them to notify their parents); Gilbertson, 599 N.W.2d at 131-32 (holding homeowners did not have a special relationship with a guest because they did not have custody and control of the guest, the guest had not entrusted her safety to her hosts, and her hosts had not accepted any entrustment). “A special relationship may also arise where one accepts responsibility to protect another, although there was no initial duty.” Lundman v. McKown, 530 N.W.2d 807, 820 (Minn.App.1995), review denied (Minn. May 31, 1995). In Lundman, the supreme court concluded a special relationship existed between a diabetic boy and two individuals — a Christian Science nurse and a Christian Science practitioner — whom his mother had hired, paid, and entrusted to provide care to him by praying during his illness. Id. at 821-23.

The supreme court has observed that “small children in a licensed day care facility are a particular protected class ... consists of uniquely vulnerable persons: small children, often infants, left by their working parents in a home other than their own, and left in the care of another person for some period of less than 24 hours of the day.” Andrade v. Ellefson, 391 N.W.2d 836, 842 (Minn.1986). Here, Flohaug concedes that Hannah was vulnerable and lacked the ability to protect herself. With respect to the existence of a special relationship, the issue before us is therefore whether, in offering to “help” her mother in the day care during the variance period beginning August 21, Flo-haug accepted the entrustment of the care and custody of the entire group of dependent children, including Hannah.

The district court concluded, and Flo-haug now argues, that no special relationship existed because Flohaug never cared for, met, or saw Hannah in life and was not present in Jeffrey’s home when Jeffrey put Hannah down for her nap. Because we believe that Flohaug accepted the en-trustment of every child in the day care and subsequently acted in a manner consistent with that acceptance, we hold that Flohaug assumed a duty of care toward Hannah.

First, the record is clear that Flohaug specifically promised her mother that she would help in the day care during the variance period without indicating that her assistance would be restricted to specific children. The record is also clear that Jeffrey placed no limitation on Flohaug’s function when she identified her to the county on the variance application as a “helper.” There is no evidence — and Flohaug does not assert — that Flohaug only agreed to care for certain children or rejected the entrustment of any child or children. See Whittemore, 552 N.W.2d at 708-09 (stating no duty arises where en-trustment is rejected). We therefore disagree both with Flohaug’s assertion that her presence in the home on August 21 was coincidental or not due to her general acceptance of entrustment and with her contention that the only connection between herself and Hannah was that “Flo-haug happened to be at home when Hannah passed away.”

Flohaug argues that she owed Hannah no duty because “neither Laska nor Jeffrey entrusted [her] with Hannah’s care.” But the supreme court has specifically adopted that part of § 324A of the Restatement (Second) of Torts (1965) (Liability to Third Person for Negligent Performance of Undertaking), which “imposes liability on a defendant who undertakes for another (whether gratuitously or for consideration) to perform a duty owed by the other to a third person.” Erickson, 447 N.W.2d at 170. It is undisputed that Jeffrey owed a duty of care to every child present in her home on August 21. Pursuant to § 324A and Erickson, when Flo-haug agreed to help her mother during the variance period she undertook a duty of care equal in scope to that owed by her mother, that is, a duty to every child, including Hannah. We therefore disagree with Flohaug’s argument that her duty to Hannah required a particularized entrustment to her by either her mother or Las-ka.

Flohaug next argues that, even assuming she did agree to help her mother, she had no duty of care toward Hannah because there was no particularized interaction or contact between herself and the child, contending that “there is absolutely no evidence that [she] ever helped Jeffrey with Hannah’s care [and Laska’s] inability to establish this link ... is a fundamental flaw in her liability case against Flohaug.” We disagree. It is true that an affirmative rejection of entrustment prevents a duty of care from arising as to specific individuals. See Whittemore, 552 N.W.2d at 708-09. But Flohaug’s argument that affirmative interaction is required — in' addition to a general acceptance of entrustment as to the day care — to trigger a special relationship between herself and Hannah is without legal support.

In Erickson, the supreme court rejected an analogous attempt tó limit liability, holding that where a security firm contracted with a hotel to patrol a parking ramp adjacent to the hotel, the firm owed a duty of care to every person using the ramp, and could not distinguish between hotel patrons arid other ramp patrons for the purposes of determining its liability. 447 N.W.2d at 170-71. Similarly, we are not convinced by Flohaug’s assertion that despite her general acceptance of control over a vulnerable group of children, a special relationship only arose between herself and those children with whom she individually interacted.

Flohaug testified that when she agreed to help her mother supervise the children during the variance period, she understood her tasks to generally include feeding the children, changing diapers, playing • with the children, and accompanying them on outings. On the day of Hannah’s death, Flohaug performed various tasks, including administering first aid to the toddler who cut her head. The record is clear she did not withhold care from any particular child or refuse to perform any necessary task as to any children. Because Flohaug voluntarily accepted the custody and control of a group of vulnerable individuals— including Hannah — we conclude that Flo-haug did have a special relationship with Hannah.

Laska also challenges the district court’s conclusion that she failed to establish the second criterion for the existence of a legal duty: the foreseeability of the risk involved. See Gilbertson, 599 N.W.2d at 130. In determining whether a danger of injury is .foreseeable, courts must consider whether it is objectively reasonable to expect that the specific danger will result in injury, not simply whether it was within the realm of any conceivable possibility. Whiteford by Whiteford v. Yamaha Motor Corp., U.S.A., 582 N.W.2d 916, 918 (Minn.1998). “When the issue of foreseeability is clear, the courts, as a matter of law, should decide it. In close cases, the question of foreseeability is for the jury.” Id. (footnote omitted).

The district court determined there was no evidence that Flohaug foresaw the risk of an infant being on an adult bed prior to discovering Hannah. The parties present opposing and meritorious arguments concerning whether a foreseeable risk to Hannah was objectively reasonable. Because we cannot conclude the issue of foreseeability is so clear as to be susceptible to resolution as a matter of law, we hold this issue must be resolved by a finder of fact.

Finally,. Laska argues summary judgment was improper because a dispute of material fact exists concerning whether Flohaug stated to the police investigating Hannah’s death that she entered the room where Hannah was sleeping at some time between 3:30 and 4:00 to check on her. We agree. According to both the police report and the coroner’s report, Flohaug did make this statement. At her deposition, Flohaug denied having made the statement, but acknowledged that she spoke with the police when they arrived at the house. Whether Flohaug made the statement and whether the statement is admissible present questions of material fact. A material fact is one that will affect the outcome or result of a case. O’Malley v. Ulland Bros., 549 N.W.2d 889, 890 (Minn.1996).

Here, Flohaug’s statement can affect the issue of her liability — -and thereby the outcome of the case — because by entering the room during Hannah’s nap, Flohaug could have created a special relationship with the child even without having previously accepted her entrustment. See Lundman, 530 N.W.2d at 820 (holding “[a] special relationship may ... arise where one accepts responsibility to protect another, although there was no initial duty”); Walsh v. Pagra Air Taxi, Inc., 282 N.W.2d 567, 570 (Minn.1979) (finding special' duty where city, while having no affirmative duty to assist in preservation of private property, voluntarily undertook to render fire protection services to airport users). The weight and credit to be accorded conflicting evidence concerning the statement’s existence must be determined by a finder of fact. See Tsudek v. Target Stores, Inc., 414 N.W.2d 466, 469 (Minn.App.1987) (stating it is within province of jury to weigh conflicting testimony and determine witness credibility), review denied (Minn. Dec. 18, 1987). The district court erred in granting summary judgment in light of this disputed issue of material fact.

DECISION

By agreeing to help her mother during the day care’s permit-variance period, Flo-haug accepted the entrustment of every child who was then in her mother’s custody and control, including Hannah. On this record, the issue of foreseeability of harm to Hannah is not so clear as to be resolved as a matter of law. The district court therefore erred by granting Flohaug summary judgment based upon its conclusion she owed Hannah no duty as a matter of law. Summary judgment is also precluded here by the disputed issue of material fact concerning Flohaug’s statement as reported in the police and coroner’s reports. We reverse the grant of summary judgment for Flohaug and remand for trial.

Reversed and remanded.


author: PER CURIAM.

text:
    2005 ND APP 3
    In the Interest of A.K., a Child and M.B., a Child. Carla Pine, Petitioner and Appellee v. A. and M., children; L.S., Mother; J.B., Father, A.K., Sr., Father; and guardian ad litem, Ed Dyer; and the Executive Director of Human Services Dept., State of North Dakota, Respondents. L.S., Mother, Respondent and Appellant.
    No. 20040313CA.
    Court of Appeals of North Dakota.
    May 10, 2005.

      Tyrone Jay Turner (on brief), Assistant State’s Attorney, Bismarck, N.D., for petitioner and appellee.
    William Delaney Schmidt (on brief), Bismarck, N.D., for respondent and appellant.
   PER CURIAM.

[¶ 1] L.S. appealed a juvenile court order affirming a judicial referee’s order terminating her parental rights in A.K. and M.B. We affirm.

I

[¶ 2] A.K., who was born on December 24, 2000, and M.K., who was born on December 13, 2002, were taken into shelter care on March 19, 2003, and again on April 9, 2003.

[¶ 3] After a hearing on August 31, 2004, the judicial referee found the following facts by clear and convincing evidence. An April 9, 2003, fire in L.S.’s apartment resulted in M.B. being severely burned and L.S. being charged with possession of drug paraphernalia, child abuse and neglect for using methamphetamine in the presence of the children. L.S. pleaded guilty to the charges and received a deferred imposition of sentence, which was later revoked and she was then sentenced to 18 months in jail for not maintaining suitable employment or contact with her probation officer, not completing chemical dependency or nurturing classes, not paying a victim witness fee, testing positive for cocaine, ■ and possessing a weapon. L.S. started, but did not finish, an abuse group and a parenting class. She visited A.K. only once since June 2003 and visited M.B. three times since his release from the hospital on May 12, 2003. L.S. is at the Correctional Center in New England, with an earliest release date of February 21, 2005, and a latest release date of June 2005. She has not. attended any permanency plan meetings. Her request for time after release from incarceration to complete requirements imposed to regain custody “flies in the face of the best interests of the children and their need for permanency.” “There is testimony that the foster parents in Minnesota are looking into adoption of both the children.” Both children have been out of the parental home for at least 450 out of the prior 660 nights. “[B]oth children are deprived and the conditions and causes of the deprivation are likely to continue or will not be remedied, and [] by reason thereof, the children are suffering or will probably suffer, serious physical, mental, moral, or emotional harm.” “It is in the best interests of both children that the parental rights of [L.S.] ... be terminated.”

[¶ 4] The referee’s order terminating L.S.’s parental rights in the children was affirmed on review by the juvenile court. On appeal, L.S. contends the court erred in finding by clear and convincing evidence that the children are deprived, the conditions and causes of the deprivation are likely to continue or not be remedied, and the children are suffering or will probably suffer serious physical, mental, moral or emotional harm justifying termination of L.S.’s parental rights.

II

[¶ 5] Section 27-20-44(1), N.D.C.C., provides for termination of parental rights:

The court by order may terminate the parental rights of a parent with respect to the parent’s child if:
a. The parent has abandoned the child;
b. The child is a deprived child and the court finds:
(1) The conditions and causes of the deprivation are likely to continue or will not be remedied and that by reason thereof the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm;
(2) The child has been in foster care, in the care, custody, and control of the department, or a county social service board, or, in cases arising out of an adjudication by the juvenile court that a child is an unruly child, the division of juvenile services, for at least four hundred fifty out of the previous six hundred sixty nights.

[¶ 6] Under N.D.C.C. § 27-20-02(8)(a), a deprived child is a child who “[i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of the child’s parents, guardian, or other custodian.” At the hearing, L.S.’s attorney conceded the children were deprived and L.S. “currently is not capable of providing for the children because she’s incarcerated.”

[¶ 7] The State must prove the elements for termination of parental rights by clear and convincing evidence. In re B.O., 2001 ND 137, ¶10, 631 N.W.2d 159. Effective March 1, 2004, N.D.R.CivJP. 52(a) was amended to provide that findings of fact in juvenile matters shall not be set aside on appeal unless clearly erroneous. In re Adoption of S.R.F., 2004 ND 150, ¶ 7, 683 N.W.2d 913. On appeal, the complaining party has the burden of showing that findings of fact are clearly erroneous. Striefel v. Striefel, 2004 ND 210, ¶ 8, 689 N.W.2d 415. A trial court’s findings of fact are presumptively correct, and on appeal we view the evidence in the light most favorable to the findings, without reweighing the evidence or reassessing credibility if there is evidence supporting the findings. Id. “A finding of fact is .clearly erroneous under N.D.R.Civ.P. 52(a) if there is no evidence to support it, if it is clear to the reviewing court that a mistake has been made, or if the finding is induced by an erroneous view of the law.” In re T.J.L., 2004 ND 142, ¶2, 682 N.W.2d 735.

[¶ 8] In determining if the causes and conditions of deprivation will continue or will not be remedied, there must be prognostic evidence forming the basis for reasonable prediction of continued or future deprivation. In re E.R., 2004 ND 202, ¶7, 688 N.W.2d 384; In re D.Q., 2002 ND 188, ¶ 21, 653 N.W.2d 713. Any prediction of the future requires some reflection upon the past conduct of the parties. In re T.F., 2004 ND 126, ¶ 19, 681 N.W.2d 786; In re D.Q., at ¶ 21. A lack of parental cooperation with social service agencies is pertinent to determining if deprivation will continue. In re T.F., at ¶ 19; In re B.N., 2003 ND 68, ¶23, 660 N.W.2d 610; In re D.Q., at ¶21. “Evidence of a parent’s background, including previous incidents of abuse and deprivation, may be considered in determining whether deprivation is likely to continue.” In re T.F., at ¶ 12. “[T]he primary purpose of N.D.C.C. ch. 27-20 is to protect the welfare of children.” In re A.M., 1999 ND 195, ¶ 6, 601 N.W.2d 253. A court need not await a tragic event before terminating parental rights. In re D.Q., at ¶ 21. “When a parent, through voluntary actions, without reasonable justification, makes herself unavailable to care for and parent a young child, the child should not be expected to wait or assume the risk involved in waiting for permanency and stability in her life.” In re E.R., at ¶ 9.

[¶ 9] As in In re B.N., 2003 ND 68, ¶ 21, 660 N.W.2d 610, L.S. did not provide a safe, healthy environment for her children when they were living with her. L.S. pleaded guilty to a drug charge, child abuse and child neglect. L.S. violated conditions of her probation, resulting in her incarceration and inability “to provide for the children’s care for a considerable time.” In re T.F., 2004 ND 126, ¶ 11, 681 N.W.2d 786. That conduct also demonstrated “a serious indifference toward [her] responsibilities and obligations as a parent.” In re C.R., 1999 ND 221, ¶ 10, 602 N.W.2d 520. L.S. did not complete chemical dependency, nurturing, and parenting classes, and she did not participate in any permanency plan meetings. We conclude L.S. “has failed to overcome the presumption of correctness we accord to the trial court’s findings of fact,” and the findings are not clearly erroneous. Oldham v. Oldham, 2004 ND 62, ¶ 13, 677 N.W.2d 196.

Ill

[¶ 10] Affirmed.

[¶ 11] EVERETT NELS OLSON, S.J., BRUCE E. BOHLMAN, S.J., and WILLIAM F. HODNY, S.J., concur.


author: MEIERHENRY, Justice.

text:
    2005 SD 48
    STATE of South Dakota, Plaintiff and Appellant, v. William J. LOVELAND, Defendant and Appellee.
    No. 23382.
    Supreme Court of South Dakota.
    Considered on Briefs March 21, 2005.
    Decided April 20, 2005.
    Lawrence E. Long, Attorney General, Jeffery J. Tronvold, Assistant Attorney General, Pierre, SD, for plaintiff and appellant.
    Timothy T. Hogan of McCann, Ribstein, Hogan & McCarty, Brookings, SD, for defendant and appellee.
   MEIERHENRY, Justice.

[¶ 1.] This is an intermediate appeal from the trial court’s order suppressing evidence of cocaine in the defendant’s urine. We reverse.

FACTS

[¶ 2.] During the early morning hours of May 1, 2004, police responded to a noise complaint at a Brookings residence. Upon their arrival, the police could see individuals in the backyard, several of which were holding alcoholic beverage containers. As Officer Weber of the Brookings Police Department walked into the yard, some of these individuals started running. Shortly thereafter, William Loveland was apprehended by Officer Weber and arrested for fleeing an officer. Loveland was searched and a glass pipe and a small glass jar containing marijuana were found on his person. Loveland was then taken to the Brookings County Detention Center, where officers secured a urine sample from him. Loveland did not consent to providing the urine sample. The sample was forwarded to the South Dakota Health Laboratory along with a “Subject’s History Form.” This form is filled out by the police and asks for basic information about the individual whose urine is to be tested. It also asks whether a general drug screen is wanted or a screen for a specific drug only. In this casé, the arresting officer requested a complete drug screen of the sample rather than a specific screen for marijuana only. The drug screen resulted in a positive test for both marijuana and cocaine. Due to the positive test for cocaine, Loveland was charged with possession of a controlled substance in addition to the charges for possession of marijuana, possession of drug paraphernalia, underage consumption and violation of a city ordinance prohibiting fleeing from an officer. Loveland filed a motion to suppress the drug screen evidence, claiming that the drug screen of the urine sample violated his Fourth Amendment right to be free of unreasonable searches and seizures.

[¶ 3.] A motion hearing was held on the suppression issue. At the hearing, Love-land did not contest the. constitutionality of the seizure of his urine, nor did he contest the testing of the urine for marijuana. However, Loveland argued that the scope of the drug screen was impermissibly expanded to test for the presence of drugs for which there was no probable cause to believe were present; specifically, cocaine. Loveland compares this to the type of general exploratory search prohibited by Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564, 583 (1971) (affirming the plain view doctrine but warning that the doctrine “may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges”). The trial court agreed that the testing for drugs other than those for which the State had probable cause was an illegal search and seizure. The trial court entered an order suppressing any evidence related to the presence of cocaine in Loveland’s urine. The State then filed, a petition for intermediate appeal, which was granted by this Court.

STANDARD OF REVIEW

[¶ 4.] “A motion to suppress based on an alleged violation of a constitutionally protected right is a question of law reviewed de novo.” State v. Chavez, 2003 SD 93, ¶ 13, 668 N.W.2d 89, 95.

ISSUE

Whether the trial court erred when it suppressed all evidence of the presence of cocaine in Loveland’s urine.

DECISION

[¶ 5.] The issue on appeal is narrow and straight-forward. After a urine sample is properly seized pursuant to an ár-rest on drug charges, may the sample be tested for the presence of all illegal substances or must the test be limited only to the suspected illegal substance? Loveland argues that the Fourth Amendment of the United States Constitution and Article VI § 11 of the South Dakota Constitution require probable cause to search for each, specific substance before the State can test for it. To test for a substance without probable cause to believe it may be present, Loveland claims, is an unconstitutional search. In response, the State does not directly argue the issue of whether there was probable cause to test for cocaine in the urine sample. Instead, the State asserts that once the police rightfully obtain the sample, the subsequent conduct of testing the sample is not a search that is subject to Fourth Amendment protections. In this regard, the State points out that the Fourth Amendment protects a citizen from official conduct only when that conduct infringes upon a legitimate expectation of privacy. See U.S. v. Jacobsen, 466 U.S. 109, 122, 104 S.Ct. 1652, 1661, 80 L.Ed.2d 85, 100 (1984) (analyzing an alleged violation of the Fourth Amendment and stating: “We must first determine whether this can be considered a ‘search’ subject to the Fourth Amendment — did it infringe an expectation of privacy that society is prepared to consider reasonable?”). The State claims there is no reasonable expectation of privacy concerning a urine sample after it has properly been seized; therefore, the Fourth Amendment is inapplicable to the subsequent testing of the sample. See generally State v. Hauge, 103 Hawaii 38, 79 P.3d 131, 144-46 (2003) (discussing whether a privacy interest continues to exist in a lawfully procured blood sample).

[¶ 6.] The Fourth Amendment to the U.S. Constitution and Article VI § 11 of the South Dakota Constitution protect against “unreasonable searches and seizures.” Not all governmental intrusions, however, are considered a search or seizure subject to Fourth Amendment protection. In Katz v. United States, a two-part test to assist in determining whether a governmental intrusion raises Fourth Amendment implications was set forth. 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576, 588 (1967) (Harlan, J., concurring). Under Katz, the Fourth Amendment affords protection to those who “first ... have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’” Id. See also State v. Wellner, 318 N.W.2d 324, 328 (S.D.1982); State v. No Heart, 353 N.W.2d 43, 45 (S.D.1984); Cordell v. Weber, 2003 SD 143, ¶ 12, 673 N.W.2d 49, 53.

[¶ 7.] The issue here involves the second prong of the Katz analysis. The question is whether Loveland had an expectation of privacy in the urine sample that “society is prepared to recognize as reasonable.” While the State urges us to find that Loveland had no reasonable expectation of privacy in the sample generally, we restrain ourselves to a more limited holding. Once a urine sample is properly seized, the individual that provided the sample has no legitimate or reasonable expectation that the .presence of illegal substances in that sample will remain private.

[¶ 8.] After the urine sample was seized by the police, testing the sample for the presence of illegal substances required no further seizure of Loveland’s person or effects. The testing itself was only a search of items already seized. In an analogous context, the United States Supreme Court addressed whether there is a legitimate privacy interest in the presence of illegal substances so as to prevent the unintrusive use of a drug-sniffing dog, which reveals only the presence of illegal substances:

Official conduct that does not compromise any legitimate interest in privacy is not a search subject to the Fourth Amendment. We have held that any interest in possessing contraband cannot be deemed legitimate, and thus, governmental conduct that only reveals the possession of contraband compromises no legitimate privacy interest. This is because the expectation that certain facts will not come to the attention of the authorities is not the same as an interest in privacy that society is prepared to consider reasonable.

Illinois v. Caballes, —— U.S. -, -, 125 S.Ct. 834, 837-38, 160 L.Ed.2d 842, - (2005) (citing Jacobsen, 466 U.S. at 122-23, 104 S.Ct. at 1661, 80 L.Ed.2d at 100-01 (internal citations and quotation omitted)).

[¶ 9.] In the present case, the police lawfully seized the urine sample and any substances contained therein. The testing to determine whether that sample contained traces of cocaine compromises no legitimate privacy interest. Id.; See also Jacobsen, 466 U.S. at 123, 104 S.Ct. at 1662, 80 L.Ed.2d at 101 (“[Governmental conduct that can reveal whether a substance is cocaine, and no other arguably ‘private’ fact, compromises no legitimate privacy interest.”). Much like the use of a well-trained drug detection dog described in Caballes, the urinalysis utilized by the state “does not expose noncontraband items that otherwise would remain hidden from public view[.]” Caballes, — U.S. at --■, 125 S.Ct. at 838,160 L.Ed.2d at-(citation and quotations omitted). The testing only revealed the possession of contraband. Because testing the properly seized urine sample for illegal substances other than marijuana did not compromise any legitimate interest in privacy, such testing did not implicate the Fourth Amendment’s protection against unreasonable searches and seizures.

[¶ 10.] The trial court is reversed.

[¶ 11.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP and ZINTER, Justices, concur.

      . We are hesitant to hold there is no privacy interest at all in these urine samples, as such samples may contain vast amounts of sensitive personal information about the person they were taken from. See e.g. Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 617, 109 S.Ct. 1402, 1413, 103 L.Ed.2d 639, 659 (1989) ("chemical analysis of urine, like that of blood, can reveal a host of private medical facts about an employee, including whether he or she is epileptic, pregnant, or diabetic.”); see also Luck v. Southern Pacific Transportation Co., 218 Cal.App.3d 1, 15-17, 267 Cal.Rptr. 618 (1990).


text:
    2005 SD 50
    STATE of South Dakota, Plaintiff and Respondent, v. Nicole Marie MULLIGAN, Defendant and Petitioner.
    No. 23549.
    Supreme Court of South Dakota.
    Considered March 10, 2005.
    Decided April 20, 2005.

      Mark W. McNeary, Walworth Co. Special Prosecutor, Richard L. Russman, Wal-worth Co. Special Prosecutor, Aberdeen, SD, for plaintiff and respondent.
    Melissa E. Neville and Richard A. Som-mers of Bantz, Gosch & Cremer, Aberdeen, SD, for defendant and petitioner.
   PER CURIAM.

[¶ 1.] Nicole Marie Mulligan filed an untimely petition for intermediate appeal along with a motion to excuse default filing. Because we conclude that the time limit provided in SDCL 15-26A-13 is jurisdictional, and thus cannot be excused, we dismiss the petition.

FACTS

[¶ 2.] On December 30, 2003, Mulligan was indicted on alternative counts of first degree murder and first degree manslaughter. Mulligan filed a motion in the circuit court to dismiss the indictment on the grounds of prosecutorial misconduct based on the State’s alleged failure to disclose exculpatory evidence. On December 22, 2004, the circuit court denied that motion. On January 7, 2005, notice of entry of that order was served upon Mulligan by mail. Thereafter, on February 18, 2005, Mulligan filed a petition for intermediate appeal with this Court seeking to challenge the circuit court’s order. She simultaneously filed a motion to excuse her default based on the untimeliness of the petition. The petition was filed twenty nine days after the expiration of the time to perfect an intermediate appeal as set forth in SDCL 15-26A-13.

ANALYSIS

ISSUE

[¶ 3.] Whether the failure to timely file a petition for intermediate appeal deprives this Court of appellate jurisdiction to consider the petition.

[¶ 4.] “We are required to take notice of jurisdictional questions, whether presented by the parties or not. The appellate jurisdiction of this Court will not be presumed but must affirmatively appear from the record.” Double Diamond v. Farmers Co-op. Elevator, 2003 SD 9, ¶ 6, 656 N.W.2d 744, 746. “To determine whether the statutory grant of appellate jurisdiction has been met, the rules of statutory interpretation apply.” Id. ¶ 7. SDCL 15-26A-13 provides that a petition for intermediate appeal “may be sought by filing a petition for permission to appeal ... with the clerk of the Supreme Court within ten days after notice of entry of such order." SDCL 15-26A-13 (emphasis added).

[¶ 5.] This Court has not explicitly held that the failure to timely file a petition for discretionary appeal deprives the Court of jurisdiction to consider that request. However, we have stated “we acquire jurisdiction to the extent necessary to act upon Plaintiffs request for permission to appeal when notice of appeal is served within the statutory time.” Bettelyoun v. Sanders, 90 S.D. 559, 243 N.W.2d 790, 794 (S.D.1976)(allowing intermediate appeal to proceed when notice of that appeal was timely filed although not accompanied by necessary supporting documents). Analogously, it is settled law that the failure to timely file a notice of appeal is a jurisdictional defect. DuBray v. South Dakota Department of Social Services, 2004 SD 130, ¶ 29, 690 N.W.2d 657, 666; Stumes v. Delano, 508 N.W.2d 366, 373 (S.D.1993); Long v. Knight Const. Co. Inc., 262 N.W.2d 207, 209 (S.D.1978). Because the time requirement contained in SDCL 15-26A-13 is mandatory and there is no exception provided in the appellate rules, we conclude that the time limit contained in SDCL 15-26A-13 to petition for intermediate appeal is also a jurisdictional requirement. If that requirement is not met it deprives the Court of appellate jurisdiction to consider the merits of the petition.

[¶ 6.] This • determination is consistent with the approach of the federal courts which uniformly treat the intermediate appeal timé limit found in 28 U.S.C.A. § 1292(b) as a jurisdictional requirement. See Consul General of the Republic of Indonesia v. Bill’s Rentals, Inc., 251 F.3d 718, 720 (8th Cir.2001) (dismissing appeal when application for intermediate appeal was not filed within ten days); Carr Park, Inc. v. Tesfaye, 229 F.3d 1192, 1194 (D.C.Cir.2000)(holding failure to file the petition within ten days deprives the appellate court of jurisdiction). See also 16 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure, § 3929 at 376-77 Permissive Interlocutory Appeals (2d ed 1996 & Supp 2004). As one court has observed, “[t]his rule is not arbitrary but functional. It helps to preserve the respect due trial judges by minimizing appellate-court interference. It reduces the ability of litigants to harass opponents and to clog the courts through a succession of costly and time-consuming appeals and it hence is crucial to the efficient administration of justice.” Kenyatta v. Moore, 744 F.2d 1179, 1182 (5th Cir.1984) (internal citations omitted).

, [¶ 7.] Accordingly, we hold that the failure to timely file a petition for intermediate appeal is a jurisdictional defect requiring the Court to dismiss the petition. Petition dismissed.

[¶ 8.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, participating.