This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Acorn Investments, Inc., et al., petitioners,


City of White Bear Lake,


Filed January 16, 2001


Stoneburner, Judge


Ramsey County District Court

File No. C3001241


Paul L. Ratelle, Dennis J. Trooien, Fabyanski, Westra & Hart, P.A., Suite 1100, 920 Second Avenue South, Minneapolis, MN 55402 (for appellants)


Clifford M. Greene, Greene Espel, P.L.L.P., Suite 1700, 333 South Seventh Street, Minneapolis, MN 55402; and


Roger A. Jensen, Jensen, Bell, Converse & Erickson, P.A., Suite 1500, 30 East Seventh Street, St. Paul, MN 55101 (for respondent)



            Considered and decided by Lansing, Presiding Judge, Stoneburner, Judge, and Mulally, Judge.*




U N P U B L I S H E D   O P I N I O N



            Appellants Ryan Companies U.S., Inc., Acorn Investments, Inc., and New Bedford Associates appeal from the denial of a writ of mandamus, arguing that the district court erred in concluding that the zoning laws of respondent City of White Bear Lake would not permit the development of a Home Depot store on certain real property owned by Acorn and New Bedford.  Because we agree with the district court’s interpretation and application of the city’s zoning laws, we affirm.


            In May 1999, Ryan Companies U.S., Inc. (Ryan) submitted a land-use application to the City of White Bear Lake (the City) requesting a conditional use permit to build a Home Depot store on property zoned B-W, business warehouse (the property).  The application requested four conditional use permits, preliminary plat approval, vacation of drainage, and utility easements. 

            The City amended its zoning ordinances in August 1999 before reviewing the developer’s application.  One amendment provides that the purpose of B-W zoning is to establish “storage and/or warehousing as well as individual sales of large volume wholesale or bulk commercial retail items.”  White Bear Lake, Minn., Zoning Code § 1303.180,   subd. 1 (1999).[1]  Permitted uses in a B-W district include “building material sales.”  Id., subd. 2(e) (1999).  A simultaneous amendment to the B-4, general business district, zoning ordinance provides that B-4 zoning is created for the “establishment of commercial and service activities which draw from and service customers from the entire community or region” and specifically identifies home improvement stores as permitted uses of property zoned B-4.  White Bear Lake, Minn., Zoning Code § 1303.150, subds. 1, 2(h) (1999).

After amending its zoning ordinances, the City denied Ryan’s application because the intended development was inconsistent with the property’s B-W zoning and the City’s comprehensive land use plan.  Appellants filed a petition for writ of mandamus in February 2000, asking the district court to order the City to issue permits for “the construction and use of the Home Depot store, subject to an application for a building permit in the usual form and substance therefor,” arguing that the intended use of the property is consistent with B-W zoning.  The district court denied the petition on the ground that the B-W zoning ordinance precluded appellants’ intended use of the property.  This appeal follows.


            A writ of mandamus may be issued to “compel the performance of an act which the law specially enjoins as a duty resulting from an office.”  Minn. Stat. § 586.01 (1998).  Appellants may obtain a writ of mandamus only by showing that the City had either a clear and present duty to perform the act requested or, if the act was discretionary, that the “failure to perform it was so arbitrary and capricious as to constitute a clear abuse of discretion.”  McIntosh v. Davis, 441 N.W.2d 115, 118 (Minn. 1989) (quotation omitted).  Mandamus may only be used to compel ministerial acts and is not properly issued when an official has discretion with respect to the act sought to be compelled.  Silver Bay Area Citizens v. Lake Superior Sch. Dist. No. 381, 448 N.W.2d 92, 96 (Minn. App. 1989), review denied (Minn. Jan. 23, 1990).  We will not reverse a district court’s order denying a petition for mandamus relief unless “there is no evidence reasonably tending to sustain the trial court’s findings.”  Popp v. County of Winona, 430 N.W.2d 19, 22 (Minn. App. 1988), review denied (Minn. Nov. 23, 1988).

            Appellants contend that the City had no discretion to deny the zoning application for the proposed store.  In the alternative, appellants argue that the City’s failure to grant the application was a clear abuse of discretion because the proposed store is an expressly permitted use of the property under the City’s amended zoning ordinances.  The City argues that mandamus is inappropriate because appellants are attempting to “circumvent land use procedures requirements set forth in the City of White Bear Lake Zoning Code.”  The City disagrees that the proposed store is an expressly permitted use of the property.

            Minnesota law provides that a city has discretion to deny an application for a conditional use permit only for reasons relating to the public health, safety, or general welfare or because the proposed development is incompatible with a city’s land use plan.  SuperAmerica Group, Inc. v. City of Little Canada, 539 N.W.2d 264, 267 (Minn. App. 1995), review denied (Minn. Jan. 5, 1996).  The City denied appellants’ request as incompatible with the City’s land use plan, interpreting the B-W zoning ordinance to prohibit the development of the property as a Home Depot store.

            The interpretation of an ordinance involves a question of law, which this court reviews de novo.  Gadey v. City of Minneapolis, 517 N.W.2d 344, 347 (Minn. App. 1994), review denied (Minn. Aug. 24, 1994).  Three general rules of construction guide a court’s interpretation: terms in zoning ordinances are given their plain and ordinary meaning; zoning ordinances should be construed strictly against a city and in favor of a landowner; and zoning ordinances must be considered in light of their underlying policy goals.  Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608-09 (Minn. 1980).  General rules of statutory construction may also aid interpretation.  See Batalden v. County of Goodhue, 308 N.W.2d 500, 501 (Minn. 1981) (referring to general rules of statutory construction).

The B-W zoning ordinance provides that the purpose of a B-W district is to establish “storage and/or warehousing as well as individual sales of large volume wholesale or bulk commercial retail items.”  White Bear Lake, Minn., Zoning Code         § 1303.180, subd. 1 (1999).  Appellants do not argue that the proposed store is for the purpose of storage, warehousing, or wholesale sales.  Appellants assert that the store is for the sale of bulk commercial retail items.  Appellants contend that: (1) the term “bulk” is ambiguous and includes the size of an object; (2) building materials are sold in “bulk” by virtue of their size; and (3) Home Depot sells building materials.  Appellants conclude that the home improvement store is a permitted use in a B-W district.  We find appellants’ interpretation of the plain language of the ordinance unpersuasive. 

We agree with the district court and the City that the clear language of the Zoning Code identifies the proper location for a home improvement store as being in a B-4 zone and reject appellants’ arguments that their store is really a lumberyard engaged in bulk building material sales and that the Zoning Code therefore permits home improvement stores in both B-W and B-4 districts.  The district court noted several definitions of “bulk”: “referring to a large or great mass” (citing Naftalin v. John Wood Co., 263 Minn. 135, 144, 116 N.W.2d 91, 97 (1962)); “(of goods) not divided into parts (a bulk shipment of grain)” (citing Black’s Law Dictionary); and “(1) Not divided into parts, (2) Not packaged in separate units” (citing Webster’s New Collegiate Dictionary).  Based on the evidence in the record, including a store floor plan identifying products to be sold, the district court found that Home Depot is a home improvement store that sells all kinds of items in non-bulk quantities.  Appellants admit that over 24,000 square feet (24%) of their proposed store would be used for the sale of non-building materials.  The district court correctly rejected appellants’ characterization of the store as engaged in the sale of bulk commercial retail items and correctly determined that a Home Depot store is not a permitted use of property zoned B-W.

Appellants argue that even if Home Depot is not engaged in “bulk” sales, the proposed Home Depot store is still a permitted use of the property because the ordinance includes “building materials sales” as a permitted use of a property zoned B-W.  See White Bear Lake, Minn., Zoning Code § 1303.180, subd. 2 (1999).  Appellants argue that the sale of non-building materials is an “accessory use” to the sale of building materials.  But the zoning ordinance defines accessory use as “[a] subordinate building or use which is located on the same lot on which the principal building or use is situated and which is reasonably necessary and incidental to the conduct of the primary use of such building or principal use.”  White Bear Lake, Minn., Zoning Code § 1301.030, subd. 1 (1999).  Appellants did not establish that the “accessory” items were reasonably necessary and incidental to the sale of building materials or that a subordinate building is contemplated.  The district court found that “[a] B-W district is clearly meant to have industrial-type development, not the intensive retail operations conducted by Home Depot.”  Reading the ordinance as a whole, the language in section 1303.180, subdivision 2 permitting building materials sales is governed by the language in subdivision 1 setting forth the purpose of a B-W zoning classification.  The ordinance provides that a B-W district is

intended to be transitional in nature, thus industrial uses allowed within [a B-W district] shall be limited to those which can compatibly exist adjacent to commercial and lower intensity activities.


White Bear Lake, Minn., Zoning Code § 1303.180, subd. 1.  The City does not regard the proposed Home Depot store as an industrial use that can compatibly exist adjacent to commercial and lower intensity activities.  At the same time that the City amended its B-W ordinance, it also amended its B-4, central business district, ordinance to provide that “home improvement stores” are a permitted use in property zoned B-4.  The district court did not err in finding the permitted uses listed were governed by the stated purpose of the zoning provision.  The district court correctly concluded that the City’s denial of appellants’ application to build a Home Depot store on property zoned B-W was not arbitrary or capricious.



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

[1] The former ordinance had provided that B-W zoning was for the establishment of “wholesale and retail trade of large volume or bulk commercial items.”  White Bear Lake, Minn., Zoning Code § 1303.180, subd. 1 (1998).