This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-00-1385

 

 

Friends of Chester Park:

LoAnn Hilde, John N. Ringsred, Eric J. Ringsred,

Darlene Virta, and Jamie Glitsos,

Appellants,

 

William B. Humes, et al.,

Amicus Plaintiffs,

 

vs.

 

City of Duluth, et al.,

Respondents,

 

Women's Coalition, Inc. of Duluth and Trisha O'Keefe, etc.,

Respondents.

 

Filed March 27, 2001

Affirmed

Schumacher, Judge

Concurring in part, dissenting in part, Amundson, Judge

 

St. Louis County District Court

File No. C800600245

 

 

LoAnn Hilde, 721 North 20th Avenue East, Duluth, MN 55812 (pro se appellant)

 

John N. Ringsred, 111 Marion Street, Duluth, MN 55812 (pro se appellant)

 

Eric J. Ringsred, 701 West Arrowhead Road, Duluth, MN 55812 (pro se appellant)

 

Darlene Virta, 1818 East Seventh Street, Duluth, MN 55812 (pro se appellant)

 

Jamie Glitsos, 627 North 20th Avenue, Duluth, MN 55812 (pro se appellant)

 

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

 

James A. Wade, Faye M. Witt, Johnson, Killen & Seiler, P.A., 230 West Superior Street, Suite 800, Duluth, MN 55802 (for respondents Women's Coalition and Trisha O'Keefe)

 

 

            Considered and decided by Halbrooks, Presiding Judge, Schumacher, Judge, and Amundson, Judge.

U N P U B L I S H E D   O P I N I O N

SCHUMACHER, ROBERT H., Judge

Respondent Women's Coalition, Inc. of Duluth obtained a special use permit from the respondent City of Duluth (the City) to construct and operate a residential rooming house as a shelter for battered women.  After revising the plans, Women's Coalition obtained approval for the revisions and received a building permit.  Appellants, several neighborhood residents known as Friends of Chester Park, sought to enjoin the project.  The district court, in several orders, (1) denied the motion for a temporary injunction; (2) determined collateral estoppel applies to the issue of whether the special use permit was properly granted; (3) determined that the government officials owed no special duties to Friends of Chester Park; (4) determined that Friends of Chester Park failed to exhaust their administrative remedies; (5) determined that the City's action was not arbitrary and capricious; (6) denied Friends of Chester Park's motion to amend their complaint; and (7) determined there were no genuine issues of material fact as to Friends of Chester Park's defamation claims.  Friends of Chester Park challenge several of these decisions on appeal and also raise issues of federal environmental review, zoning, and standing.  The City and Women's Coalition raise additional issues regarding res judicata, collateral estoppel, official immunity, and mootness.  We affirm.

FACTS

In 1997, Women's Coalition, a nonprofit corporation providing shelter and advocacy to domestic-violence victims, applied for a special use permit to build a shelter for abused women and children in a residential zone.  The proposed site was zoned as an R-2 two-family residential district in which a "[r]esidential rooming house containing 12 or fewer habitable units" could be located provided a special use permit was secured.  Duluth, Minn., Legislative Code § 50-68(h) (1998).  Such rooming houses are defined as buildings

designed as a single family dwelling containing habitable units which are absent some or all bathroom and/or kitchen facilities and which provide sleeping and/or living accommodations by prior arrangements, for compensation and for definite time periods.  Some or all bathroom and/or kitchen facilities, where provided, are for use on a communal basis.

 

Duluth, Minn., Legislative Code § 50-1.59 (1998).

The proposed rooming house was to be an 8,000-square-foot building located on a Duluth hillside in a neighborhood where most of the single-family buildings are approximately 1,000 square feet.  It was to consist of one main floor and a walkout basement that took up roughly half the footprint of the main floor.  The building was to have nine bedrooms and communal kitchen, living, educational, and child-care accommodations.  Additionally, it would have approximately 350 square feet of meeting and office space.

The City approved the building as a "residential rooming house" and granted the special use permit.  Appellants Darlene Virta and Jamie Glitsos, along with five other area residents who are not parties to the present action, challenged that approval in the district court on the grounds that the blasting required to dislodge rock on the construction site, as well as the increased parking and traffic associated with the building, would jeopardize the safety and welfare of the neighborhood residents.  They also challenged the City's failure to require Women's Coalition to post a performance bond as required in its zoning regulations.  Notably, this action did not challenge whether or not the structure qualified as a "residential rooming house."

On September 2, 1998, the district court, in Glitsos v. City of Duluth, No. C9-97-601506 (Minn. Dist. Ct. Sept. 2, 1998), approved the granting of the special use permit, holding that the city council's action was reasonable, and not arbitrary and capricious.  Although it was not raised by the Glitsos plaintiffs, the court, on its own, addressed the "residential rooming house" issue and determined that, although the building appeared to be designed as a nine-bedroom rooming house, the building met the definition of "designed as a single family dwelling" because the physical characteristics of the building incorporated "typical neighborhood house design."  That decision was not appealed.

In 1998 after the Glitsos decision, Women's Coalition changed the building's plans.  Although the building's footprint was not enlarged, the number of bedrooms was not changed, and residential space was not eliminated by the new plan, Women's Coalition's new plan called for the excavation of the entire foundation of the main floor in order to add approximately 4,000 square feet of office and meeting space.

Women's Coalition sought advice from the City's planning division as to whether these changes required the issuance of a new special use permit.  The planning division determined that a new special use permit was not necessary because the new plans still complied with the original special use permit.  In so doing, the planning division found that the footprint was decreased and both the number of bedrooms and the proposed use had not changed.

In May 1999, appellant LoAnn Hilde moved to the City from Anchorage, Alaska, and purchased a home adjacent to the proposed project.  She claimed no prior knowledge of the building project, the special use permit, or the Glitsos litigation.  Apparently, the City and Women's Coalition had not filed the special use permit with the county recorder as required by Minn. Stat. §§ 462.36 and 462.3595, subd. 4 (2000).

After the Glitsos decision, Women's Coalition completed its construction-planning process.  It sought some of the funding for the project through Department of Housing and Urban Development (HUD) grant programs, which are administered by the City.  In November 1999, the Duluth City Council approved grant funding.

In late 1999, Women's Coalition applied for a building permit in order to commence construction of the project. The plans had again been changed, although these changes were minor.  Duane Lasley, the Duluth building inspector, issued a building permit.

Virta, Glitsos, and Hilde, in addition to other residents, appealed the building permit to the board of zoning appeals, which upheld its issuance.  The Board's decision was not appealed to the Duluth City Council, and Women's Coalition commenced construction of the project.

Several weeks into construction, Hilde, Virta, Glitsos, and appellants John N. Ringsred and Eric J. Ringsred brought an action for declaratory, equitable, and injunctive  against the City, Women's Coalition, individual city officials, and an officer of Women's Coalition.  In their complaint, Friends of Chester Park alleged that: (1) the special use permit violated the city code because the structure was not a "residential rooming house"; (2) funding of the project was improper because the construction plans no longer complied with the special use permit and the new plans had not been re-submitted to the city council; (3) the issuance of the building permit was improper because it was for a structure not permitted by the special use permit; (4) Friends of Chester Park's procedural due process rights had been violated; (5) the city officials intentionally and tortiously violated the city zoning code; (6) the City and the its planning division manager, Keith Hamre, had engaged in fraud in the administration of the federal grant program; (7) the City's engineer, Richard Larson, had wrongfully failed to issue or waive an erosion-control permit required by the city code; and (8) unnamed defendants had defamed unnamed plaintiffs.

In three separate orders, the district court denied Friends of Chester Park's motions to amend the complaint, for a temporary restraining order, and for partial summary judgment; granted summary judgment in favor of the City, Women's Coalition, and the individual officials; and dismissed with prejudice Friends of Chester Park's complaint as to the government respondents.  This appeal followed.

D E C I S I O N

On appeal from a grant of summary judgment, this court reviews evidence in the light most favorable to the non-moving party, but need not defer to the trial court's application of law.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

Friends of Chester Park challenge the district court's dismissal of six of the causes of action: whether the structure at issue qualifies as a "residential rooming house"; the failure to re-submit the changed plans to the city council for new special use permit; Lasley's alleged negligence in issuing the building permit; the city officials' failure to enforce an erosion ordinance; Women's Coalition and the City's intentional omission of certain information from HUD environmental evaluations; and HUD's failure to consider the prior landfill use of the property.

1.         The district court concluded that the second cause of action was barred by Friends of Chester Park's failure to exhaust their administrative remedies.  Generally, in district court actions alleging that a party is aggrieved by a municipal decision, that party must exhaust all administrative remedies before seeking judicial review.  Minn. Stat. § 462.361, subd. 2 (2000); Medical Servs., Inc. v. City of Savage, 487 N.W.2d 263, 266 (Minn. App. 1992); Chase v. City of Minneapolis, 401 N.W.2d 408, 411 (Minn. App. 1987).  Here, Friends of Chester Park had ten days to appeal the board of zoning appeals' decision to the city council and failed to do so.

Friends of Chester Park argue that appeal to the city council would have been futile because the council had already decided to fund the project despite its knowledge of the claimed defects in the project planning.  A party need not exhaust remedies if it would be futile to do so, Medical Servs., 487 N.W.2d at 266, or if it would serve no useful purpose under the circumstances of the case.  Minn. Stat. § 462.361, subd. 2.

But because Friends of Chester Park's claim is that the revised plans necessitated a new special use permit, the remedy requested was council review of the revised project.  We do not see how council review can be considered both futile and the requested remedy at the same time.

2.         Friends of Chester Park argue that the district court erred by finding that the first claim (that the structure at issue did not qualify as a "residential rooming house") was barred by collateral estoppel and res judicata.  We need not reach this question.  When events occur during the pendency of an appeal that make a decision on the merits unnecessary or an award of effective relief impossible, the appeal is dismissed as moot.  In re Application of Minnegasco, 565 N.W.2d 706, 710 (Minn. 1997).

 Since the denial of Friends of Chester Park's motion for a preliminary injunction, the shelter has been constructed, a certificate of occupancy issued, and Women's Coalition has moved into the facility.  On the facts of this case, this effectively renders the special use-permit question moot. See Moore v. McDonald, 165 Minn. 484, 485, 205 N.W. 894, 895 (1925) (per curiam) (question of appropriateness of denial of temporary injunction restraining railway company from constructing bridge was moot when, following denial, bridge was constructed and completed).

3.         The district court dismissed Friends of Chester Park's tort claims against the City and city officials on the basis that the city officials owed no "special duty" to Friends of Chester Park.  Generally, a municipality owes no duty to individuals unless it has assumed that duty.  See Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 806 (Minn. 1979).  Although there is no bright-line measure of when a municipality has "assumed" a duty, four factors have been identified as tending to show an assumption of a "special" duty:  (1) actual knowledge of a problem, (2) plaintiffs' reasonable reliance on representations and conduct of city officials, (3) an ordinance mandating acts by city officials for the protection of a class of persons, and (4) actions by the city officials that increase the risk of harm.  Cracraft, 279 N.W.2d at 806-07.  It is not necessary to satisfy all four of these factors.  See Andrade v. Ellefson, 391 N.W.2d 836, 841-42 (Minn. 1986) (finding third factor dispositive because persons comprising at-risk class were unable to protect themselves).

Here, there has been no special reliance on any representations by city officials, and there is no ordinance creating a specially-protected class of persons.  Even if there are fact questions regarding the other two factors, no Minnesota court has ever found a "special duty" without finding a specially-protected class of persons, and we decline to do so here.

4.         Friends of Chester Park also challenge the district court's dismissal of their causes of action that alleged inadequate environmental review before HUD grant program funding approval.  Friends of Chester Park first argue that the fact that these claims were dismissed without findings, conclusions, or any grounds for the dismissal is evidence of an arbitrary decision.  But a district court is not required to make findings of fact and conclusions of law in a summary judgment order.   Minn. R. Civ. P. 52.01.

Friends of Chester Park next argue that dismissal was improper because HUD regulations direct persons seeking such redress to deal with the responsible entity (and its Certifying Officer), 24 C.F.R. § 58.77(b) (2000), which, in this case, is the City.  See 24 § C.F.R. 58.2(a)(7) (2000).  But those regulations only address how complaints are handled.  Section 58.77(b) specifically states:  "Remedies for noncompliance are set forth in program regulations."  42 U.S.C. § 5311 (1994) (emphasis added), entitled "Remedies for noncompliance with community development requirements," specifically provides for institution of a civil action by the attorney general, and procedures under this section are the sole remedy for a plaintiff's alleged noncompliance.  See Payne v. United States Dep't of Hous. & Urban Dev., 551 F. Supp. 1113, 1118 (S.D. Ohio 1982).

Friends of Chester Park also argue that they have standing to assert these claims based on the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370e (1994 & Supp. 1998).  But Friends of Chester Park did not claim any violation of NEPA in their complaint.  Accordingly, the district court's dismissal of these claims was not improper.

5.         The district court denied Friends of Chester Park's motion to amend their complaint with four additional claims alleging various tort theories.  Although amendment of pleadings shall be freely granted unless to do so would result in prejudice to an adverse party, the decision whether to allow amendment is committed to the discretion of the district court and will not be reversed absent an abuse of that discretion.  Fabio, 504 N.W.2d at 761.

Here, the district court concluded that Friends of Chester Park failed to sufficiently state causes of action upon which relief could be granted, failed to provide a sufficient factual basis to support the claims, and did not establish a prima facie case that punitive damages (sought in one of the four proposed amendments) were appropriate.  It is not an abuse of discretion to deny a motion to amend when the moving party fails to establish evidence to support an additional claim, fails to state a claim that can be recognized, Copeland v. Hubbard Broad., Inc., 526 N.W.2d 402, 405 (Minn. App. 1995, review denied (Minn. Mar. 29, 1995), or where the additional claim cannot survive summary judgment.  CPJ Enters., Inc. v. Gernander, 521 N.W.2d 622, 625 (Minn. App. 1994).

Friends of Chester Park correctly point out that the ability of a district court to deny a motion to amend because of, for example, insufficient evidence, signifies a different pleading standard for amendments to pleadings than for the initial pleading.  But their argument that this rule is nonsensical because it is easily skirted by the filing of a second suit misses the point.  Any second suit is subject to applicable statutes of limitations.  This "heightened" pleading standard helps protect defendants from the use of the motion to amend to revive subsequent and time-barred claims.  Accordingly, we do not find an abuse of discretion in the denial of the motion to amend.

6.         Although the City and Women's Coalition alleged in their answers and in their statements of the case that the Ringsreds do not have standing in this action, this issue was not litigated in the district court.

A reviewing court must generally consider only those issues that the record shows were presented and considered by the trial court in deciding the matter before it.

 

Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (quotation omitted).  Accordingly, we decline to address this issue.

            Affirmed.

 

AMUNDSON, concurring in part, dissenting in part

While I concur with the majority’s careful and complete analysis regarding the HUD claim, the dismissal of appellants’ motion to amend, and the standing question, I respectfully dissent with regard to the analysis of several of the other issues involved.

I.          Permit Issues

As a preliminary matter, the questions relating to the validity of the permitting process are clearly not moot.  Generally, when events occur during the pendency of an appeal that make a decision on the merits unnecessary or an award of effective relief impossible, the appeal is dismissed as moot.  Application of Minnegasco, 565 N.W.2d 706, 710 (Minn. 1997) (citation omitted).  In determining whether a live controversy is present that can be resolved, this court compares the relief demanded and the circumstances of the case at time of decision.  Id.

In arriving at their conclusion that questions pertaining to the construction of the building are moot, the majority assumes that appellants only requested that the building permit be voided.  But appellants’ complaint stated no such limitation.  Rather, appellants alleged that the structure for which the building permit was issued did not conform with the special-use permit that had been granted earlier and that the plans had changed dramatically.  The heart of these claims involves both the design and the use of any structure built on that property.  The special use of “residential rooming house in a residential district” contains both architectural requirements and usage requirements.[1]  At a minimum, the issue of the building’s future use remains an open question.

While zoning classifications, in part, address the permissible physical structures that may be within that zone, much of the substance of such regulations also pertains to the uses to which certain structures may be put.  For example, in a given zone, the same structure may be permitted if it is used as residence, but not permitted if it is used as a business.  Here, it is no different.  We cannot presume that the structure might not be put to a permissible use without evidence in the record to that effect.  The majority, citing Moore v. McDonald, 165 Minn. 484, 205 N.W. 894 (1925), contends that construction necessarily moots issues regarding special-use permits.  But does Moore buttress the majority’s position?  The appellants in Moore did not question the use of the structure in that case; they merely sought to enjoin construction.  Id. at 485, 205 N.W. at 895.  Here, appellants challenge both the structure and its use.

Furthermore, even if the building cannot be made to conform to acceptable uses, it is not for this court to presume that the building cannot be removed.  The majority improperly cites Moore for the proposition that construction renders moot all attendant permitting issues.  But Moore involves a temporary injunction on the construction of a bridge.  Id.  The construction was completed and so the court found the injunction question moot.  Id.  Here, appellants sought not only to prevent the structure from being built, but also to have the Duluth zoning code enforced and the proper permitting procedures followed.  Moore has no application to these questions.

Finally, the majority’s view of the mootness doctrine creates a dangerous precedent.  Under the majority’s view, a favorable decision by the district court creates a huge incentive to quickly construct a questionable structure during the pendency of appeal, lest a court of review overturn the district court’s decision.  Is such a rule prudent?

These issues not being moot, I necessarily reach the next questions, whether the doctrines of res judicata, collateral estoppel, exhaustion of administrative remedies, and subject-matter jurisdiction compel summary judgment in this case.  I believe they do not.

Res Judicata

The district court appears to have found that the first claim (that the special-use permit was issued improperly) is barred by res judicata.  Respondents also argue that res judicata bars the second claim (that the modified plans did not comply with the special-use permit).  This question is reviewed de novo.  Ascher v. Comm’r of Pub. Safety, 527 N.W.2d 122, 125 (Minn. App. 1995), review denied (Minn. Mar. 21, 1995); AFSCME Council No. 14 v. Washington County Bd. Of Comm’rs, 527 N.W.2d 127, 130 (Minn. App. 1995).

Res judicata is claim preclusion.  Kaiser v. Northern States Power Co., 353 N.W.2d 899, 902 (Minn. 1984).  Under the doctrine of res judicata, a judgment on the merits acts as a bar in a second suit based on the same cause of action and is conclusive not only as to every matter that was actually litigated but also as to every matter that might have been litigated.  In re McDonough, 296 N.W.2d 648, 700 (Minn. 1979).  The necessary elements are: (1) a final adjudication on the merits, (2) a subsequent suit involving the same claim or cause of action, and (3) identical parties or persons in privity with the original parties.  Demers v. City of Minneapolis, 486 N.W.2d 828, 830 (Minn. App. 1992).  Only the second element need be addressed to conclude that res judicata is improper.[2]

Initially, the first claim appears to be the identical claim litigated in the Glitsos v. City of Duluth action—namely, that the building was not a permissible special use under the city code.  But the nature of these claims cannot be divined by mere exegetical construct.  Rather, proper inquiry asks whether “both actions arise from the same operative nucleus of facts.”  Nitz v. Nitz, 456 N.W.2d 450, 451 (Minn. App. 1990) (quotation omitted).

Here, the underlying facts are clearly not the same.  The special-use permit and the building permit were issued for significantly different buildings, with both substantial design differences and different planned uses.  At the time this suit was filed, the structure was designed to have 50% more square footage and ten times the office space as the one for which the special-use permit was originally granted.  The office space alone would take up almost four times the size of most homes in the neighborhood.

Central to any determination of suitability for a special-use permit is whether a building constitutes an acceptable special use within the applicable code.  The Duluth City Code defines a “residential rooming house” as,

[a] building designed as a single family dwelling containing habitable units which are absent some or all bathroom and/or kitchen facilities and which provide sleeping and/or living accommodations by prior arrangements, for compensation and for definite time periods.

Duluth, Minn., Legislative Code § 50-1.59 (emphasis added).  In the earlier action, the district court concluded that the building, as originally proposed, was “designed as a single-family dwelling” because it was designed with the appearance of a single-family home.[3]  It is certainly a different question now when the subject is a 12,000-square-foot building designed with approximately 4,000 square feet of office space.  Can that structure be described as “designed as a single-family dwelling” in a neighborhood where most of the single-family dwellings are about one-tenth the size?

Respondents also suggest that the second claim (that the building’s revised plan no longer fits within the approved special-use permit) involves the same claim or cause of action as in the Glitsos action.  This claim was not litigated, nor could it have been, in the Glitsos action because the entire claim is premised upon the change in the plan that occurred after the Glitsos action.

Collateral Estoppel

Respondents also argue that the second claim is barred by collateral estoppel, a question also reviewed de novo.  Falgren v. State, Bd. of Teaching, 545 N.W.2d 901, 905 (Minn. 1996).  Collateral estoppel is a narrower concept than res judicata and applies when: (1) the issue is identical to one in prior litigation; (2) there was a final judgment on the merits; (3) the estopped party was a party or is in privity with a party to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue.  Ellis v. Minneapolis Comm’n on Civil Rights, 319 N.W.2d 702, 704 (Minn. 1982).  No further discussion is necessary other than whether the issues here are identical.

The issue raised here is whether the modified building design was still “designed as a single-family dwelling” and therefore an allowable special use.  This issue could not have been litigated earlier because this building proposal was not in issue earlier.[4]

The building, as constructed, differs substantially from the one that received the special-use permit.  Furthermore, the issue of compliance with the zoning requirements was not litigated at all in the Glitsos adjudication.  The plaintiffs in that case only raised issues regarding adverse environmental effects resulting from the new building; potential damage to surrounding buildings as a result of blasting during construction; potential loss of income for a daycare business; crime and safety problems; and the potential for unacceptable assessment costs and property devaluation.  None of these plaintiffs raised the issue of whether the building (even as proposed at the time of the special-use permit) fit within the definition of a “residential rooming house.”[5]  Accordingly, collateral estoppel should not preclude the district court from reaching these issues.

Exhaustion of Administrative Remedies

The majority also concluded that appellants were barred from the second cause of action by their failure to exhaust their administrative remedies.  Although the general rule in these situations is that a party must exhaust all administrative remedies before seeking judicial review, a party need not exhaust remedies if it would be futile to do so, Medical Servs., Inc. v. City of Savage, 487 N.W.2d 263, 266 (Minn. App. 1992).

In Medical Servs., a city council adopted a resolution that included a reference to the city attorney’s conclusion that a proposed building would not be within any section of the city’s zoning ordinance. Id. This court concluded that the resolution demonstrated that the city council believed the proposed facility was not a permitted use, thus making further appeal futile.  Id.  Here, the futility of appeal to Duluth City Council is evidenced by the fact that the city council voted to fund the project despite being fully aware of the legal questions being raised by appellants.  Just as the city council in Medical Servs. showed the futility of further appeal by adopting a position contrary to that needed on appeal, the Duluth City Council, in electing to fund this controversial project, implicitly rejected arguments raised in hearings before the council and later raised in the present action.

The majority focuses on the fact that appellants’ claim futility of appeal to the council while at the same time request council review of the project.  But is there no difference in the postures of these council reviews?  Would there be no difference between city council review of a building permit for a structure that had already received a special-use permit and a new request for a special-use permit (after a court determined that a special-use-permit application needed to be resubmitted)?  If this court found that the building permit was entered improperly and that the special-use permit needed to be re-considered for compliance with the “residential-rooming house requirement,” the city council would be addressing a different question.  The initial building permit inquiry involved the question of whether the modified building still fit within the initial special-use permit.  The question that would be posed to the city council on remand is whether the modified structure fit within the code at all—a question not yet litigated.

Furthermore, and more importantly, how can appellants’ right of review by the city council be limited by the doctrine of futility of such review?  The majority’s position is essentially that appellants failed to exhaust their remedies because they failed to allege futility throughout the entire process.  I know of no corollary to the exhaustion doctrine that requires futility to be applied universally, if at all.  Even if the special-use permit review would be as futile as the building permit review, appellants are not required to make that allegation and are free to engage the council on those grounds.  The futility exception to the exhaustion doctrine is an excuse for failure to appeal a decision through the proper channels, not a bar to review.

Finally, because city council review of the special-use permit was never required, application of the majority’s reverse-futility doctrine is not ripe.  Were this case to be re-submitted to the city council to determine whether a special-use permit is proper, appellants would, at that time, decide whether that issue is futile.

Subject-Matter Jurisdiction

Respondents also claim that the district court was without subject-matter jurisdiction over the building-permit challenge because, without statutory authority, quasi-judicial decisions by a local executive body may only be reviewed by writ of certiorari.  The existence of subject-matter jurisdiction is a question of law.  Shaw v. Board of Regents of Univ. of Minn., 594 N.W.2d 187, 190 (Minn. App. 1999), review denied (Minn. July 28, 1999).

While the decision by the board of zoning appeals was unquestionably quasi-judicial, specific statutory authority exists for district-court review of this decision.  Minn. Stat. § 462.361 (2000) provides that, persons aggrieved by a

decision * * *  of a governing body or board of adjustments and appeals acting pursuant to sections 462.351 to 462.364 may have such * * * decision * * * reviewed by an appropriate remedy in the district court.

Because the statute mandating boards of zoning appeals for “any municipality adopting or having in effect a zoning ordinance,” see Minn. Stat. § 462.354, subd. 2 (2000), is within the range of statutory sections covered by section 462.361, decisions by boards of zoning appeals are within the subject-matter jurisdiction of the district court.

Respondents argued that because the Duluth board of zoning appeals was created before the passage of section 462.361, its decisions are not subject to district court review.  This argument is without merit.  In cities like Duluth, boards of zoning appeals are no longer discretionary.  Minn. Stat. § 462.354, subd. 2.  The fact that Duluth’s may have been created before they were made mandatory is of no consequence.  As soon as the state made them mandatory, their actions were reviewable in the same manner that all boards of zoning appeals are reviewable—review in district court.  In passing section 462.361, the legislature recognized that appeals of decisions by these quasi-judicial bodies are more efficiently conducted in the district court.  White Bear Rod and Gun Club v. City of Hugo, 388 N.W.2d 739, 742 (Minn. 1986).  Persons aggrieved by such decisions are to first seek relief in the district court.  Id.  Duluth’s prescience in this regard does not exempt them from the legislature’s subsequent action. 

Respondents suggest that, because the board of zoning appeals was established pursuant to the Duluth city charter, which has the force and effect of enactments of the state legislature, see Park v. City of Duluth, 134 Minn. 296, 298, 159 N.W. 627, 628 (1916), board decisions are not made pursuant to section 462.354 and are therefore not reviewable in district court.  But subsequent legislative actions are not limited by the actions of municipalities.  To the contrary, the power conferred upon cities to frame and adopt home rule charters is limited by the provision that such charters shall always be in harmony with and subject to the public policy and laws of the state.  State ex rel. Town of Lowell v. City of Crookston, 252 Minn. 526, 528, 91 N.W.2d 81, 83 (1958).  Here, the policy of the state is unquestionably to have decisions by zoning appeal boards reviewed in district court.

II.        Tort Liability

The majority’s focus on two of the factors of the special duty test is incorrect—there is no bright-line measure of when a municipality has “assumed” a duty.  Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 806 (Minn. 1979).  Four factors have been identified as tending to show an assumption of a “special” duty: (1) actual knowledge of a problem, (2) plaintiffs’ reasonable reliance on representations and conduct of city officials, (3) an ordinance mandating acts by city officials for the protection of a class of persons, and (4) actions by the city officials that increase the risk of harm.  Id.at 806-07.  It is not necessary to satisfy all four of these factors.  See Andrade v.Ellefson, 391 N.W.2d 836, 841-42 (Minn. 1986) (finding the third factor dispositive because the at-risk class of persons were unable to protect themselves).  Our cases have never held that the absence of third factor is dispositive.  The third factor is but one of four factors.  If it were to have more significance, it would be an element and not just a factor.

With regard to Duane Lasley, the Duluth building inspector, there are at least fact questions regarding the first and fourth factors.  From the record, it appears that Lasley may well have known that he was improperly issuing the building permit.  Furthermore, the issuance of a building permit that is contrary to a municipality’s zoning codes may well increase the risk of harm.[6]

Although in this case there has been no reliance and there is no ordinance creating a specially protected class of persons, government officials have a duty to not knowingly act contrary to existing law.  The knowledge that a particular action is illegal creates a duty to avoid such action.  If Lasley knew that, by issuing a building permit, he was violating Duluth’s zoning ordinances, he breached that duty when, acting in contravention of that knowledge, he issued the permit.  Accordingly, I would remand this issue to the district court for a determination on its merits.

As I would hold that there is a fact question regarding special duty owed to appellants, I necessarily would reach the issue of whether the city and individual municipal officers are protected by official immunity.

The general rule of the common law doctrine of official immunity is that a public official is not personally liable to an individual for damages.  Wiederholt v. City ofMinneapolis, 581 N.W.2d 312, 315 (Minn. 1998).  Exceptions to this rule are (1) when the duty is ministerial and not discretionary and (2) when the official acts with malice.  Kelly v. City of Minneapolis, 598 N.W.2d 657, 664 (Minn. 1999).  The former is a question of law reviewed de novo, the latter is usually a question of fact.  Id. at 664 n.5.

Ministerial decisions are those that are absolute, certain, and imperative, and involve merely the execution of a specific duty arising from fixed and designated facts.  Rico v. State, 472 N.W.2d 100, 107 (Minn. 1991).  As the issuance of a building permit is, by its very nature, a discretionary act, Lasley would only be liable if he acted with malice.

But here, appellants have presented evidence that Lasley’s actions were, in fact, malicious, which in this context means “nothing more than the intentional doing of a wrongful act without legal justification or excuse,” id. (citations omitted), or in other words committing acts “while having reason to believe they are prohibited.”  Davis v.Hennepin County, 559 N.W.2d 117, 123 (Minn. App. 1997), review denied (Minn. May 20, 1997) (citations omitted).  It is undisputed that the building permit varied from the special-use permit.  Section 50-32 of the Duluth zoning code states that, in the event of the city council’s approval of the special use,

the site plan, landscape plans and building elevation drawings for the development as approved, and other commitments and contractual agreements, shall be recorded as a city council public document prior to the issuance of any building permit.  All future use of the land and structures erected thereon pursuant to the special use permit shall be thereafter governed by and limited to the approved plans.  Any subsequent change or addition to the plan or use shall be submitted for approval [through the special use permit procedures].

Duluth Minn., Legislative Code §50-32 (1995) (emphasis added).  On the face of section 50-32, the new building plans needed to be re-submitted to comply with the zoning regulations.  Although I would not interpret the phrase “any subsequent change” to be without some flexibility—the building inspector is expected to have some discretion in dealing with minor variances—here, the differences between the planned building and the one Lasley permitted were substantial.  There is no question that the new plans needed to be re-submitted to the city council.  Accordingly, I would find that there is at least a fact question as to whether Lasley had reason to believe that granting the building permit was not permitted.

As to Larson, Doty, and Hamre, I believe the record to be incomplete on this issue.  Therefore, I would remand to the district court for clear findings regarding any special duty owed to appellants or any protections afforded to the city officials by the official immunity doctrine.



[1] The Duluth Zoning Code defines “residential rooming houses” as buildings,

designed as a single family dwelling containing habitable units which are absent some or all bathroom and/or kitchen facilities and which provide sleeping and/or living accommodations by prior arrangements, for compensation and for definite time periods.  Some or all bathroom and/or kitchen facilities, where provided, are for use on a communal basis.

Duluth, Legislative Code § 50-1.59 (1995) (emphasis added).

[2] It is worth noting, however that appellant LoAnn Hilde’s claim is especially compelling.  At the time of the earlier decision, Hilde was living in Alaska, not Duluth, and the special-use permit was never filed.  Accordingly, not only was she not in privity with the parties who litigated the Glitsos action, there was no way she could be expected to have been able to find out about the structure that was to be built next to her house.

[3] Under the Duluth City Code, single-family dwellings are defined as “designed for exclusive occupancy by one family and occupied exclusively by one family.”  Duluth, Minn., Legislative Code § 50-1.20 (1995).

[4] Respondents’ suggestion that appellants should have raised the residential-rooming-house issue in the previous litigation has no place in analysis of collateral estoppel.  Unlike the doctrine of res judicata, under collateral estoppel the failure to raise a particular issue does not preclude the issue from being litigated in a subsequent proceeding.  Travelers Ins. Co. v. Thompson,281 Minn. 547, 551, 163 N.W.2d 289, 292 (1968) (“Unlike the situation where a former judgment acts as an absolute bar, it is an indispensable prerequisite to collateral estoppel that the issue involved be actually litigated and determined in the former suit.”) (quoting Gollner v. Cram,258 Minn. 8, 10, 102 N.W.2d 521, 523 (1960));Sunrise Elec., Inc. v. Zachman Homes, Inc., 425 N.W.2d 848, 849-50 n.1 (Minn. App. 1988) (a ruling based on a failure to raise an issue must derive from an application of res judicata or alternatively law of the case, but is not an attribute of collateral estoppel).

[5] The fact that, in the Glitsos order, the district court, on its own, addressed that issue does not limit the present litigation.

[6] I would hold that a violation of a zoning ordinance presumptively increases the risk of harm.  The harm that is increased is that sought to be avoided through the enactment of the zoning ordinance.