Katherine Gayl, Paul R. Scarpari v. City of Rosemount, Friedges Excavating, Inc. ( 2016 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0046
Katherine Gayl, et al.,
Plaintiffs,
Paul R. Scarpari, et al.,
Appellants,
vs.
City of Rosemount,
Respondent,
Friedges Excavating, Inc.,
Respondent.
Filed August 8, 2016
Affirmed; motion denied
Halbrooks, Judge
Dakota County District Court
File No. 19HA-CV-15-462
James P. Peters, Law Offices of James P Peters PLLC, Glenwood, Minnesota (for
appellants)
Jessica E. Schwie, Jardine, Logan & O’Brien, PLLP, Lake Elmo, Minnesota (for
respondent City of Rosemount)
Timothy J. Grande, Patrick C. Summers, DeWitt Mackall Crounse & Moore, S.C.,
Minneapolis, Minnesota (for respondent Friedges Excavating, Inc.)
Considered and decided by Hooten, Presiding Judge; Halbrooks, Judge; and
Jesson, Judge.
UNPUBLISHED OPINION
HALBROOKS, Judge
Appellants, residents of the immediate area, challenge the district court’s grant of
summary judgment to respondent City of Rosemount following the city’s approval of a
planned unit development (PUD). Appellants argue that the city lacked a rational basis to
rezone the parcel of property the PUD is located on and that the city acted arbitrarily and
capriciously when it approved the preliminary plat, master development plan, and final
plat for the PUD. Before oral argument, respondents moved to dismiss the appeal as
moot. We deny the motion to dismiss because respondents did not satisfy their burden to
establish that the appeal is moot. Because the city had a rational basis to rezone the
property and did not act arbitrarily or capriciously by approving the plats and plan, we
affirm.
FACTS
In the summer of 2014, Friedges Excavating, Inc. applied to the city for a PUD in
order to develop a parcel of land known as Wilde Lake Estates (the property). The
property, approximately 56 acres of land, is located just to the north of McAndrews Road
and is divided by Dodd Boulevard. Forty-nine acres are located between Dodd
Boulevard and South Robert Trail, and another seven acres are located to the west
between Dodd Boulevard and a neighboring property. There are three wetlands on the
property. Thirty-seven acres of the property were formerly zoned agricultural (AG), and
the remaining 19 were zoned rural residential (RR). Based on the zoning, Friedges could
2
have developed 11 buildable lots. Friedges applied for a PUD, in part to increase the
number of buildable lots to 14.
The planning commission held a public hearing on July 22, 2014. During that
meeting, Friedges asked the planning commission to recommend to the city council that it
approve the preliminary and final plats and the master development plan. According to
the plan, the seven acres to the west of Dodd Boulevard were to be divided into two lots.
The other 12 lots were to be located on a cul-de-sac connected to the road on the property
to the east of Dodd Boulevard. The properties to the east of Dodd Boulevard are
bordered by wetlands on the north and south sides.
In accordance with the PUD procedure outlined in the Rosemount City Code,
Friedges asked the city to rezone the property from AG and RR to RR PUD. To secure
the extra lots and build the development as it planned, Friedges requested that the city
(1) decrease the minimum lot size on the property by 20% (2.5 acres to 2 acres);
(2) decrease the minimum lot width by 20% (200 feet to 160 feet); (3) increase the
maximum density by 20% (1 unit per 5 acres to 1 unit per 4 acres); and (4) extend the
maximum cul-de-sac length from 700 feet to 1,010 feet.
In exchange for these modifications, approximately 4.5 acres of land would be
dedicated to the city for a regional trail that runs from Lebanon Hills Regional Park to
downtown Rosemount and two outlots for rest areas along the trail and a possible future
underpass. The conditions of approval created minimum design standards for the homes
that could be built on the property. Finally, Friedges promised to put $226,700 into
3
escrow, with the expectation that the money would be used by the city to pave Dodd
Boulevard.
The July 22 meeting was open for public comment for approximately 40 minutes.
Fifteen people spoke for or against the proposal—the majority in opposition. The
speakers raised concerns about the potential paving of Dodd Boulevard, changing the
minimum lot size, and changing the maximum cul-de-sac length. They also voiced
concerns about changing the rural character of the area; the project’s impact on wetlands,
property values, storm water management, and traffic; safety; and potential septic system
problems. Ultimately, the planning commission recommended that the city council allow
Friedges to develop the property as a PUD.
The city council considered the proposal in a public meeting on November 18,
2014. The city received several written objections, including one from appellants that
highlighted concerns about the PUD’s proposed density standards. During the meeting,
citizens voiced many of the same concerns that they had expressed in the planning
commission meeting. After an amendment to relocate the placement of a road on the
property to respond to neighborhood concerns, the city approved Friedges’s application,
including the preliminary plat, master development plan, final plat, and subdivision
agreement and adopted an ordinance to amend the zoning district for the property to RR
PUD.
Appellants challenged the city’s decision in a complaint filed in district court
under Minn. Stat. § 462.361, subd. 1 (2014). Appellants sought a declaration that the
project violates ordinances and statutes and requested that the approval be vacated.
4
Appellants also requested injunctive relief, reversing the city’s decision, enjoining
Friedges from developing the property, and enjoining the city from granting any
approvals on the application. Both parties moved for summary judgment, and the district
court granted respondents’ motion. This appeal follows.
DECISION
I.
Prior to oral argument, Friedges filed a motion, in which the city joined, to dismiss
this appeal as moot. The mootness doctrine “requires that we decide only actual
controversies and avoid advisory opinions.” In re McCaskill, 603 N.W.2d 326, 327
(Minn. 1999). When a decision on the merits is no longer necessary or an award of
effective relief is no longer possible, an appellate court should dismiss an appeal as moot.
Dean v. City of Winona, 868 N.W.2d 1, 5 (Minn. 2015) (citing In re Application of
Minnesgasco, 565 N.W.2d 706, 710 (Minn. 1997)). The burden of showing mootness is
on the party asserting it. Cardinal Chem. Co. v. Morton Int’l, Inc., 508 U.S. 83, 98, 113
S. Ct. 1967, 1976 (1993). An assessment of mootness requires “a comparison between
the relief demanded and the circumstances of the case at the time of decision in order to
determine whether there is a live controversy that can be resolved.” Minnesgasco, 565
N.W.2d at 710.
Relying on Moore v. McDonald, 165 Minn. 484, 205 N.W. 894 (1925) (per
curiam), Troy v. City of St. Paul, 155 Minn. 391, 193 N.W. 726 (1923), and Apple Valley
Square v. City of Apple Valley, 472 N.W.2d 681 (Minn. App. 1991), respondents argue
5
that the appeal is moot because the project is substantially complete. Each of the three
cases is distinguishable.
In Moore, the supreme court held in a per curiam opinion that the question of the
appropriateness of denial of a temporary injunction restraining a railway company from
constructing a bridge was moot when, following denial, the bridge construction was
completed. 165 Minn. at 485, 205 N.W. at 895. The supreme court stated, “A reversal of
the order, and the issuance at this time of the temporary injunction asked for, would
accomplish nothing.” Id. Here, while Friedges has completed most of its work on the
development, not all of the homes have been constructed nor have all of the lots been
sold.
In Troy, the supreme court held that the appeal was moot because the city
ordinance on which the appeal was based had been amended while the appeal was
pending. 155 Minn. at 393-94, 193 N.W. at 727. Here, respondents do not assert that the
law has changed in a way that renders appellants’ claim moot. In addition, the claimant
in Troy filed an original complaint before the city had issued a permit for the building.
Id. at 393, 193 N.W. at 727. But after the original complaint was dismissed, the city
issued a permit for the property and construction began. Id. The claimant did not attempt
to file an amended complaint until a month later. Id. By the time the challenge reached
the supreme court, construction was complete. Id. As previously noted, the construction
in the present matter is not complete nor did appellants wait until the city had already
granted approval of Friedges’s plan to challenge the project.
6
In Apple Valley Square, this court concluded that because the appellant did not file
suit until one month before the affected commercial development opened for business,
the case was barred by laches and dismissed as moot. 472 N.W.2d at 683. We stated
that, “given the delay in bringing the action and the substantial completion of the project,
equitable relief would not be appropriate.” Id. Appellants in this case did not delay in
seeking relief, but objected orally at the meetings on July 22 and November 18 and in
writing between the meetings.
An award of effective relief could still be available for appellants. Appellants
stressed during oral argument that they do not object to development of the land. What
they challenge is the allowance for extra lots through the use of the PUD procedure. We
therefore conclude that respondents have not shown that effective relief is no longer
available, and this appeal is not moot.
II.
Appellants argue that the city did not have a rational basis to rezone the property.
In an appeal of a municipal zoning decision, “[w]e do not give any special deference to
the conclusions of the lower courts, but rather engage in an independent examination of
the record and arrive at our own conclusions as to the propriety of the city’s decision.”
Mendota Golf, LLP v. City of Mendota Heights, 708 N.W.2d 162, 180 (Minn. 2006).
The standard of review for city zoning matters is “whether [a city’s] action was
reasonable.” AVR, Inc. v. City of St. Louis Park, 585 N.W.2d 411, 414 (Minn. App.
1998) (quotation omitted), review denied (Minn. Dec. 15, 1998). But we apply the
reasonableness standard differently depending on if the city’s decision is a legislative
7
decision or a quasi-judicial decision, affording more deference to the decision if it is
legislative. Id. The adoption or amendment of a zoning ordinance, regardless of the size
of the tract involved, is a legislative decision. Honn v. City of Coon Rapids, 313 N.W.2d
409, 414 (Minn. 1981).
We utilize a rational-basis standard of review for a legislative decision to
determine whether it is reasonable. Mendota Golf, 708 N.W.2d at 179. We will uphold a
decision to amend a zoning ordinance “unless the party challenging that decision
establishes that the decision is unsupported by any rational basis related to promoting the
public health, safety, morals, or general welfare.” Id. at 180 (quotation omitted). “[E]ven
if the city council’s decision is debatable, so long as there is a rational basis for what it
does, the courts do not interfere.” Honn, 313 N.W.2d at 415. When a legislative decision
is reviewed, “the challenger bears the burden of showing that the [city’s] stated reasons
are either without factual support in the record or are legally insufficient.” Larson v.
County of Washington, 387 N.W.2d 902, 906 (Minn. App. 1986), review denied (Minn.
Aug. 20, 1986).
Respondents contend that the city’s decision to rezone the property is rationally
related to the promotion of public health and welfare because it furthers regional
recreational interests, protects wetlands and trees, and improves water quality.
Appellants respond that the city’s interests could be addressed using other means and that
the city actually rezoned the property for financial reasons. Appellants fail to address
how the city’s bases for rezoning the property are factually or legally insufficient, even if
8
they could have been achieved through other means. We conclude that the city had a
rational basis for amending the ordinance.
III.
Appellants assert that the city’s approvals of the preliminary plat, final plat, and
master development plan were arbitrary and capricious. Because the city had to
determine if Friedges’s application was lawful according to the Rosemount City Code,
the city’s approvals are akin to judicial proceedings, which qualifies them as quasi-
judicial decisions. See County of Washington v. City of Oak Park Heights, 818 N.W.2d
533, 539 (Minn. 2012) (describing the difference between legislative decisions and quasi-
judicial decisions). On appeal, we determine whether a city’s quasi-judicial decision is
reasonable. Yeh v. County of Cass, 696 N.W.2d 115, 124-25 (Minn. App. 2005), review
denied (Minn. Aug. 16, 2005). A quasi-judicial decision is unreasonable if it is arbitrary
or capricious. VanLandschoot v. City of Mendota Heights, 336 N.W.2d 503, 508 (Minn.
1983). If a city’s decision is “prohibited under the zoning ordinance,” it is arbitrary or
capricious, and we will reverse. Sunrise Lake Ass’n v. Chisago Cty. Bd. of Comm’rs, 633
N.W.2d 59, 62 (Minn. App. 2001).
Appellants argue that Rosemount, Minn., City Code (RCC) § 11-4-3 (2015)
expressly precludes the use of a PUD on land that is zoned RR, relying on section E from
RCC § 11-4-3, which states: “Uses Permitted by PUD: None.” The phrase “Uses
Permitted by PUD” is defined in RCC § 11-1-4 (2015) as “[a] use which is permitted only
if the PUD procedure is used and a plan is formally approved by the city” (emphasis
added). In other words, the “Uses Permitted by PUD” sections allow the city to use the
9
PUD procedure in some districts to expand the acceptable uses. See RCC § 11-4-8(E)
(2015) (allowing the city to use the PUD procedure to permit developers to put in
manufactured home parks, which would not otherwise be allowed in the residential
zoning district outlined in RCC § 11-4-8(A) (2015)). But RCC § 11-4-3(B) allows for
property owners of RR-zoned property to use the property for “[s]ingle-family detached
dwellings.” Friedges therefore did not need to use the PUD procedure to build single-
family detached dwellings. And the use of a PUD for that purpose is not contrary to RCC
§ 11-4-3.
Appellants contend that the property density standards approved by the city are
contrary to requirements set by the city’s ordinances and comprehensive plan.
Appellants rely on RCC § 11-10-6(B)(3) (2015), which provides:
Each residential PUD or the residential portion of each mixed
use PUD shall have a density within the range specified in the
comprehensive plan for the PUD site. The density of
individual buildings or lots within a PUD may exceed these
standards, provided the density for the entire PUD does not
exceed the permitted standards.
According to the city’s comprehensive plan, the density for property zoned RR is “[o]ne
(1) unit per five (5) acres.”
But the city is allowed to deviate from the default density standards set in RCC
§ 11-10-6(B)(3) under RCC § 11-10-6(C)(2) (2015). RCC § 11-10-6(C)(2) states,
“Regulations governing uses and structures in the PUD shall be the same as those
governing the underlying zoning district subject to the following: a. Regulations may be
modified expressly by conditions imposed by the council at the time of rezoning to
10
PUD.” The conditions of the city’s approval to rezone the property amended the density
of the property from one unit per five acres to one unit per four acres. Therefore, the
city’s decision is not contrary to RCC § 11-10-6(B)(3).
Appellants contend that the city unlawfully combined the preliminary and final
plat-approval processes when it approved both plats at the city council meeting. Under
Minn. Stat. § 462.358, subd. 3b (2014), a city code “may provide for the consolidation of
the preliminary and final review and approval or disapproval of subdivisions.” The RCC
allows for the consolidation of the preliminary and final plat approval when the following
conditions are met:
1. The resulting subdivision shall contain no more
than five (5) acres or three (3) lots for commercial plats, and
no more than ten (10) acres or twenty (20) lots for residential
plats.
2. Resulting parcels shall conform with all zoning
ordinance requirements.
3. The proposed subdivision shall contain no more
than one phase for final platting.
RCC § 12-2-5(B)(1)-(3).
Appellants argue that the approved plats do not satisfy the first or second
conditions. According to the approved plats, the property includes only 14 lots, which
satisfies the first condition. And the resulting parcels conform with all zoning ordinance
requirements through the use of the PUD procedure. The city therefore did not
unlawfully combine the approval processes.
11
Appellants also argue that the city granted the approvals out of order at the city
council meeting by approving the preliminary and final plats first instead of addressing
matters in the following sequence: (1) the preliminary plat, (2) the master development
plan, (3) the ordinance rezoning the property, and (4) the final plat. Appellants cite the
resolution numbers of the approvals as evidence to support its argument. But this
argument lacks merit. Upon review of the city council meeting minutes and the video of
the meeting, the approvals were passed in the order that appellants argue they should
have been.
Appellants argue that Friedges failed to timely submit a complete application and
application fees and failed to properly acquire plat approvals from the county before
receiving plat approvals from the city. Respondents assert that both arguments were not
properly raised before the city. In order to raise an issue on appeal, it must have been
properly raised before the local zoning authority. See Big Lake Ass’n v. St. Louis Cty.
Planning Comm’n, 761 N.W.2d 487, 491 (Minn. 2009) (applying the standard to a
certiorari review of a local zoning-board decision). To determine if an issue is properly
raised on appeal, “we review the record to determine whether the issue was fairly raised
for consideration by the” city council. Id. “The issue does not need to be framed in
precise legal terms, but there must be sufficient specificity to provide fair notice of the
nature of the challenge so that the zoning authority has an opportunity to consider and
address the issue.” Id.Appellants argue that the first issue was preserved by a letter sent to the mayor and
city council. But the letter did not claim that Friedges’s application was incomplete.
12
Because no one provided the city with fair notice of the nature of the challenge, we
conclude that it was not properly raised and decline to address it. Appellants provide no
response for how the second argument was preserved, and we have found no reference to
the argument in the record. We therefore conclude that it is not properly raised on appeal
and decline to address it.
Finally, appellants argue that the city failed to take a “hard look” at the relevant
issues by failing to give the public an adequate opportunity to be heard and improperly
relying on city staff reports before making its quasi-judicial decisions. We are not
persuaded.
Residents engaged in an open discussion with the city council and other persons
involved in the PUD during two different meetings. During the planning commission
meeting, citizens were allowed to speak for 40 minutes. Following public comments, the
developer, city planner, city engineer, as well as members of the planning commission
responded to the public’s concerns. After the planning commission meeting, and up until
the city council meeting almost four months later, the city allowed the residents to submit
written support or opposition for the project. The city then opened the floor for public
comment during the city council meeting and allowed for discussion with the realtor, the
city planner, the mayor, and the city council for more than one and one-half hours. The
record does not support the assertion that the city improperly relied on its staff or failed to
provide the public with an opportunity to be heard before making its decision.
Affirmed.
13