This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).







Robert Monson, et al.,





City of Duluth, Minnesota,




Filed September 12, 2000


Halbrooks, Judge


St. Louis County District Court

File No. C998602584



John N. Nys, Johnson, Killen & Seiler, P.A., 230 West Superior Street, Suite 800, Duluth, MN 55802 (for respondents)


Bryan F. Brown, Duluth City Attorney, M. Alison Lutterman, Deputy City Attorney, Cynthia Albright, Assistant City Attorney, 410 City Hall, Duluth, MN 55802 (for appellant)



            Considered and decided by Halbrooks, Presiding Judge, Peterson, Judge, and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant city issued a special-use permit and respondents brought suit in district court seeking to prevent the proposed development.  After a trial upon a stipulated record, the trial court concluded that the city acted arbitrarily, capriciously, and unreasonably.  Appellant contends that the trial court erred in reaching this conclusion.  We affirm. 


            In 1996, the University of Minnesota decided to sell 10.7 acres of its land in the vicinity of the Glensheen Mansion in Duluth.  The property consisted of three separate parcels that were in close proximity to each other, but not contiguous.  The three parcels have become known as the Lake Superior site, the Tischer Creek site, and the London Road site.  The Tischer Creek site is located between 32nd Avenue East and Tischer Creek, south of Greysolon Road.  The London Road site is located on the north side of London Road[1] from 150 feet west of 32nd Avenue to just east of 34th Avenue.  The Lake Superior site is on the south side of London Road and is bordered by the Glensheen mansion property on the west and respondents’ property on the east. 

Respondents Robert and Mary Monson are Duluth residents who own residential property adjacent to the Lake Superior site.  They have been opposed to the development from the time it was initially proposed. 

All three parcels are currently zoned for single family residences.  The developer applied for a special-use permit (SUP) from the city to develop this property pursuant to a special use denominated in the Duluth city code as a community unit plan (CUP).  One of the purposes of the CUP is “to encourage the innovative arrangement within neighborhoods of a variety of housing types and recreational facilities.”  Duluth, Minn., City Code § 50-37.  The city code also contains a description of the type of property eligible to be classified as a CUP and 19 specific requirements that must be complied with in order to obtain CUP classification.  Duluth, Minn., City Code §§ 50‑37.1, 50‑37.3.[2] 

            The proposed development went through several modifications prior to obtaining approval from the city council.  The initial application sought permission to build 18 townhouse units in three structures on the Tischer Creek site, 10 townhouse units in two structures on the Lake Superior site, and a combination of guest parking and undeveloped and dedicated open space on the London Road site.  Both the initial and a second proposal failed to obtain approval from the city.  The third application proposed building ten townhouse units in three structures on the Lake Superior site, four single family homes on the Tischer Creek site, and designating the entire London Road site as undeveloped and open space. 

            The planning commission recommended approval of the third application with a one-vote majority.  Similarly, the city council approved the application with a one-vote majority.  The council members who opposed the development identified several problems with the proposal.  The most significant problems articulated were the failure of the land to meet the ten-acre requirement for a CUP and that the proposal failed to comply with the CUP requirements set forth in the Duluth city code.  At the request of the council, the Duluth city attorney reviewed the proposal and identified several potential problems, but ultimately opined that the proposal complied with all of the requirements for both a SUP and a CUP.

            After the SUP was granted, the Monsons brought a declaratory judgment action.  A bench trial was held on a stipulated record and with written submissions from counsel.  The trial court issued very thorough findings of facts and conclusions of law that were supplemented with a 20-page memorandum.  The trial court concluded that the property at issue is not eligible for development pursuant to a CUP and that, even if it were, there is no evidence to support several of the city-code requirements for CUP developments.  The trial court ordered that judgment be entered against the city because the city’s action in approving the SUP was arbitrary, capricious, unreasonable, and contrary to the Duluth city code.  The city appeals from the trial court’s judgment.


            A local government with authority over zoning matters has broad discretionary powers regarding whether to issue a SUP.  Haen v. Renville County Bd. of Comm’rs, 495 N.W.2d 466, 471 (Minn. App. 1993), review denied (Minn. Mar. 30, 1993).  But the interpretation of the zoning code is an issue of law, which this court reviews de novo.  Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn. 1980). 

In granting or denying a special-use permit, a city council is not altering the legislative judgment as to the zoning classification.  Rather, it has the function, adjudicative in nature, of applying specific use standards set by the zoning ordinance to a particular individual use and must be held strictly to those standards. 


St. Croix Development, Inc. v. City of Apple Valley, 446 N.W.2d 392, 399 (Minn. App. 1989) (quotation omitted), review denied (Minn. Dec. 1, 1989).  In other words, the city council’s discretion is limited by the terms of the zoning ordinance.

1.         Tract size

            One of the controversies surrounding the proposed development from the outset involves the size and configuration of the property.  The Duluth city code provides that “[o]nly tracts of land ten acres or greater in size are eligible for development as a community unit plan.”  Duluth, Minn., City Code § 50-37.1(b).  Although the combined size of the three parcels is slightly greater than ten acres, the parcels are not contiguous.  The issue, therefore, is whether the proposed development constitutes a tract of land of sufficient size to qualify for the CUP special use.

            Zoning ordinances are to be construed (1) according to their plain and ordinary meaning; (2) strictly against a city and in favor of a landowner; and (3) in light of their underlying policy goals.  Frank’s Nursery, 295 N.W.2d at 608-09.

            The city contends that the property is a tract of land that is greater than ten acres in the plain and ordinary sense of the term “tract.”  We disagree.  Although the city code does not define the term and caselaw does not provide a generally applicable definition, the property does not fall within the plain and ordinary meaning of the term.  A tract of land is simply a “specified parcel of land.”  Black’s Law Dictionary 1499 (7th ed. 1999); see also American Heritage Dictionary 1897 (3d ed. 1996) (defining tract as “[a]n expanse of land” and “[a] specified or limited area of land”).  The property at issue in this case is not one tract of land.  Rather, it is three distinct parcels of land. 

            We also note that the property is not contiguous.  The city argues that it has previously approved CUP development for property that was bisected by public streets, easements, or rights-of-way.  Although property with these characteristics may in fact comply with the ten-acre tract requirement, the property at issue in this case contains an active railroad right-of-way that is owned in fee by the railroad.  This right-of-way separates the London Road site from the Tischer Creek site at the location where they would otherwise connect.  The railroad has posted “no trespassing” signs along its right-of-way. 

            Although we find that the property does not fall within the plain and ordinary meaning of the term tract, that is not the end of our analysis.  We must also consider the public policy behind the zoning ordinance at issue and strictly construe that ordinance against the city and in favor of the landowner.  Frank’s Nursery, 295 N.W.2d at 608-09.  The purpose behind the CUP special use is expressly set forth in the city code.

The community unit plan special use is established to encourage the innovative arrangement within neighborhoods of a variety of housing types and recreational facilities * * * conveniently located to such housing.  It is intended to encourage more economic development with relation to publish [sic] services and private resources, to preserve the natural and scenic features of open areas, and to promote the most appropriate use of land with relation to surrounding uses while maintaining the integrity of established adjacent residential areas.  Because of the wide range of allowable uses, the community development plan will generally assume a character different from that of its adjacent or surrounding neighborhood, and the proper provision of a transition area at the periphery of the development is, therefore, imperative.


Duluth, Minn., City Code § 50-37. 

The trial court correctly interpreted this section of the city code, stating:

It is apparent the CUP purpose is to facilitate the creation of semi-autonomous residential communities with necessary everyday amenities readily available in a convenient setting.  Plainly the intended policy or purpose of CUPs of this category would be thwarted if all portions of the CUP were not readily available to residents.  Major disruptions in the contiguous nature of the segments of real estate comprising a CUP would be contrary to the purpose for such CUPs because they would effectively break the community into small pieces * * * .


The physical separation of these three parcels is contrary to the purpose behind the CUP designation.  London Road is a heavily traveled U.S. highway that separates the Lake Superior site from the other two parcels.  Additionally, the London Road site and the Tischer Creek site are separated by a privately-owned railroad right-of-way with posted no-trespassing signs.  In other words, the undeveloped open space envisioned for the development is not convenient or easily accessible to the single-family homes and the townhomes planned for the property.  The property at issue in this case does not meet the necessary eligibility requirements for CUP designation as set forth in the Duluth city code.  It was arbitrary, capricious, and unreasonable for the city to issue the SUP to the developer.

2.         Additional requirements for CUP property

            Although we conclude that the property failed to meet the tract-size requirement for CUP development, we also note that there is no evidence in the record to support several of the findings that must be made by the city council prior to issuing a special-use permit for a CUP.  See Duluth, Minn., City Code § 50-37.  The trial court reached a similar conclusion and focused on three specific deficiencies in the record. 

            When this court is called upon to decide whether a zoning authority properly exercised its discretion, “we look to whether the board gave reasons for its decision.”  Haen, 495 N.W.2d at 471 (citation omitted).  In other words, this court reviews the findings made by the zoning authority.  But

[w]hen an application for a special use permit is approved, the decision-making body has implicitly determined that all requirements for the issuance of the permit have been met.


Id. (citation omitted).  Appellant contends that the record does in fact contain evidence to support the implied findings.  But we conclude, as did the trial court, that there is no evidence to support at least three of the necessary findings.

            The first finding for which there is no evidentiary support is that the residents of the Lake Superior site townhomes will have reasonable access to the open space on the London Road site with minimal or no conflict with vehicular traffic.  The CUP ordinance provides that “[u]seable open space shall be reasonably accessible from all dwelling units with minimal or no conflict with vehicular traffic.”  Duluth, Minn., City Code § 50-37.3(e).  There is no evidence in the record supportive of a finding that this requirement has been met.  As discussed above, the Lake Superior site is located across a heavily traveled highway from the open space.  Indeed, the city’s own traffic engineer and the Minnesota Department of Transportation expressed reservations about accessibility of the London Road site from the Lake Superior site.  These concerns were premised upon the high rate of traffic and the 40-mph speed limit in the area.  For these same reasons, there is no evidence to support a finding that there is reasonable access for the residents on the Lake Superior site to the open space on the Tischer Creek site.

            There is also no evidence to support the necessary finding that walkways would be built to provide a safe and convenient system of pedestrian travel throughout the CUP.  See Duluth, Minn., City Code § 50-37.3(r) (providing that walkways shall form a safe and convenient system of pedestrian traffic).  As discussed above, one of the purposes of a CUP is to create an integrated community of residential properties and open spaces.  The requirement that CUP development include a system of walkways appears to be one step toward achieving this purpose.  The plans for the development do not include a system of walkways that complies with this requirement of the ordinance.  Indeed, the townhomes on the Lake Superior site will not be connected in any way to the residential properties or the open space on the Tischer Creek site.

            Finally, the Duluth city code mandates that a CUP development, which by definition has a different character than the adjacent neighborhood, contain “transition areas” and be bounded by “major streets, railroads, topographic features or major tree stands.”  Duluth, Minn., City Code § 50-37.3(k).  This section also requires building setbacks and provides that “[s]uch setbacks shall be heavily screened where buildings normally not allowed in a zoning district are readily observable from single-family districts.”  Id.  The trial court correctly noted that the plan for the westerly boundary of the Lake Superior site that borders the Glensheen Mansion does not contain a transition area as required by the city code.  Despite the fact that the issue was explicitly raised, the city council did not address it prior to approval. 

The trial court also found that the proposed townhomes for the Lake Superior site would normally not be allowed in the area and that because of their height they would be readily observable, thereby triggering a requirement that the buildings be “heavily screened.”  The Monsons expressed significant concerns about the easterly transition area in light of the fact that the approved application provides a setback variance along their property line and fails to specify what landscaping would provide the required screening.  The CUP ordinance provides that, absent a variance, the setback must be 100 feet.  The approved application provides that the setback along the Monsons’ property line would be 30–50 feet.  Instead of resolving the screening issue, the council asked that a landscaping plan be developed and then delegated, without providing any guidance, to the Planning Division the responsibility of determining whether the plan was sufficient.

            Because the property at issue in this case does not meet the tract-size requirement and there is no evidence to support many of the other requirements for CUP special-use development, we agree with the trial court and hold that the city council acted arbitrarily, capriciously, and unreasonably in its approval of the permit.


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

[1]  London Road is also known as U.S. Highway 61 and North Shore Drive.

[2]  Duluth, Minn., City Code §§ 50‑37 to 50‑37.3 were repealed by the Duluth city council between January 24 and February 27, 2000.  This has no effect on this court’s analysis of this matter.