This opinion will be unpublished and

may not be cited except as provided by

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






State ex rel. Diana Leslie and
Robert Prill,


City of Chisago City, a municipal
corporation, City Council and
Planning Commission Members and City
Administrator of the City of Chisago City,


Bruggeman Construction Co.,



Filed August 21, 2001


Stoneburner, Judge


Chisago County District Court

File No. C700991


Virginia Stark, Box 797, Lindstrom, MN 55045 (for appellants)


Susan M. Sager, League of Minnesota Cities, 145 University Avenue West, St. Paul, MN 55103 (for respondents)


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



            Considered and decided by Randall, Presiding Judge, Stoneburner, Judge, and Huspeni, Judge.*

U N P U B L I S H E D  O P I N I O N



Based on allegations in appellants’ petition, the district court issued an ex parte alternative writ of mandamus directing respondent City of Chisago either to stop a development project or to show cause, by the return date of the writ, why the city had not done so.  The City answered, and Bruggeman Construction Company, the owner/developer, moved to intervene.  The judge assigned to the case was not the same judge who issued the alternative writ.  At the hearing on the return date of the alternative writ, the district court found that the City had shown cause by its answer, denied appellant’s request for a peremptory writ, and granted Bruggeman’s motion to intervene.  The district court denied appellants’ subsequent motion for a temporary injunction against Bruggeman to stop the development and denied appellants’ motion to remove the judge for bias.  Ultimately, the district court granted the City’s motion for summary judgment and dismissed appellant’s mandamus petition.  This appeal followed.



            In the fall of 1999, respondent City of Chisago (the City) completed a three-year revision of its zoning ordinances and zoning map.  The rezoning affected a portion of a 13-acre wooded area (the property) owned by intervenor Bruggeman Construction Company (Bruggeman).  The rezoning changed a portion of the property’s designation from single-family residential large lot to single-family residential small lot.  In September 1999, Bruggeman applied for a permit to build townhouses on the property.  The City gave preliminary approval, but Bruggeman withdrew the townhouse application in April 2000.  In May 2000, Bruggeman applied to build 24 single-family houses on the property, and in June 2000, the City approved the preliminary plat for Bruggeman’s single-family-home development.

In July 2000, appellants Diane Leslie and Robert Prill petitioned for a writ of mandamus against the City to stop development of the property.  Based on assertions in the petition, the district court issued an alternative writ of mandamus ordering the City to (1) issue a “cease and desist” order to stop any further development on the property; (2) rescind approval of the preliminary plat; (3) rescind the rezoning of the property; and (4) notify Bruggeman that its permit application could not be resubmitted until April 2001.  In the alternative, the City was ordered to show cause, by the return date of the writ, why it had not taken these actions.

The City’s answer denied many of the allegations that supported issuance of the writ and asserted affirmative defenses.  Appellants claim that, at the hearing on the return date of the writ, they orally demurred to the answer[1] as insufficient because it consisted of general denials.  The district court denied appellants’ request to convert the alternative writ into a peremptory writ of mandamus, determined that the City had shown good cause for not stopping the development project, and granted Bruggeman’s motion to intervene.  Appellants moved for a temporary injunction against Bruggeman.  The district court denied appellants’ motion and “dissolved” the “cease and desist” order contained in the alternative writ of mandamus.  Appellants then made a motion for the judge to recuse himself for bias and misapplication of the law of mandamus.  The motion was denied.  In November 2000, the City made findings of fact and granted final plat approval for the Bruggeman development.  In January 2001, the district court granted summary judgment in favor of the City and dismissed appellants’ petition for a writ of mandamus.  This appeal followed.[2]



            On appeal from summary judgment, this court reviews the record to determine whether any genuine issues of material fact exist and whether the district court properly applied the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  This court reviews a grant of summary judgment de novo, Zip Sort, Inc. v. Commissioner of Revenue, 567 N.W.2d 34, 37 (Minn. 1997), and facts must be taken in the light most favorable to the nonmoving party.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  To establish a genuine issue of material fact, the nonmoving party must do more than rely on allegations in the pleadings or postulate evidence that might be produced at trial.  W.J.L. v. Bugge, 573 N.W.2d 677, 680 (Minn. 1998); see Carlisle v. City of Minneapolis, 437 N.W.2d 712, 715 (Minn. App. 1989) (“A nonmoving party must offer significant probative evidence tending to support its complaint * * * .”).  No genuine issue of material fact exists “where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.”  DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (quotation omitted).  This court may affirm a grant of summary judgment if it can be sustained on any ground.  Winkler v. Magnuson, 539 N.W.2d 821, 828 (Minn. App. 1995), review denied (Minn. Feb. 13, 1996). 

            Appellants claim that whether the proposed structures are located only in three existing cleared areas/natural clearings identified by appellants is a material question of fact.  We disagree.  None of the plans submitted has structures located only in the three clearings identified by appellants.  This fact is not disputed.  Appellants argued to the district court that whether all of Bruggeman’s applications were the same or substantially the same, whether there was a restoration plan, and whether findings of fact were made to support rezoning are material questions of fact for trial by a jury.  The district court concluded that, as a matter of law, the plan for townhouses is not substantially the same as the plan for single-family residences, the zoning ordinance does not require a written restoration plan prior to approval of a development, and there was a rational basis for the rezoning ordinance.  On appeal, appellants argue that the alternative writ constituted their prima facie case because the issuing judge had made “findings” on facts that shifted the burden of rebuttal to the City.  We disagree.  The alternative writ contained appellants’ assertions and those assertions were found legally sufficient to support the issuance of the alternative writ.  On summary judgment, however, those assertions were nothing more than allegations in a pleading and therefore insufficient to create material fact issues.  The district court correctly concluded that there are no material fact issues.  We turn then to an examination of the court’s application of the law.

1.      Mandamus Procedure


            Appellants first assert that the district court misapplied mandamus law.  We will reverse a district court’s order on an application for mandamus relief only where no evidence reasonably tends to sustain the district court’s findings.  State ex rel. Banner Grain Co. v. Houghton, 142 Minn. 28, 30, 170 N.W. 853, 853 (1919); Haen v. Renville County Bd. of Comm’rs, 495 N.W.2d 466, 469 (Minn. App. 1993), review denied (Minn. Mar. 30, 1993).  This court need not defer to the ultimate conclusions drawn by the district court.  Haen, 495 N.W.2d at 469.  But a reviewing court is bound to accept the district court’s conclusions of law that are dictated by sustainable findings of fact.  In re Estate of Hoffbeck, 415 N.W.2d 447, 449 (Minn. App. 1987), review denied (Minn. Jan. 28, 1988).

An alternative writ commands a defendant to perform an act, or, alternatively, “show cause before the court out of which the writ issued, at a specified time and place, why the defendant has not done so, and that the defendant * * * make a return to the writ.”  Minn. Stat. § 586.03 (2000).  If the defendant fails to answer the writ, fails to show cause, or the plaintiff receives judgment on the writ, the alternative writ is converted into a peremptory writ.  Minn. Stat. §§ 586.07, .09 (2000).  If the defendant answers, the plaintiff may demur, or in trial or other proceedings, make any valid objection to the answer’s sufficiency, or rebut it by evidence.  Minn. Stat. § 586.07.  The writ, answer, and demurrer are the only pleadings allowed, and the matter proceeds in the same manner as in a civil action.  Minn. Stat. § 586.08 (2000). 

Appellants claim that the district court did not follow mandamus procedures when it failed to enter a peremptory writ after appellants demurred to the City’s answer to the alternative writ.  An answer is a proper pleading after the alternative writ has issued.  State ex rel. Pillsbury v. Honeywell, Inc., 291 Minn. 322, 332, 191 N.W.2d 406, 413 (1971) (citation omitted); see Minn. Stat. § 586.06 (2000) (“On the return day of the alternative writ * * * the party upon whom the writ is served may show cause by answer made in the same manner as an answer to a complaint in a civil action.”).  In its answer to show cause, a party should state facts, and not merely conclusions alone.  Nationwide Corp. v. Northwestern Nat. Life Ins. Co., 251 Minn. 255, 267-68, 87 N.W.2d 671, 681 (1958).  But denials and affirmative allegations based on information and belief are considered sufficient.  State ex rel. Tracy v. Cooley, 58 Minn. 514, 519, 60 N.W. 338, 338 (1894).  The City denied appellants’ allegations and stated facts and affirmative defenses to appellants’ claim that they were entitled to mandamus.  The district court followed proper mandamus procedure, and its determination that the City had shown sufficient cause by its answer to defeat appellants’ claim for a peremptory writ is not erroneous. [3]

Appellants argue that the district court erred by dissolving the “cease and desist” order contained in the alternative writ because a “new court” may not inquire into matters committed to the discretion of the first court.  Appellants claim that the judge who issued the alternative writ made findings of fact and conclusions of law and that the doctrine of res judicata precludes another judge from making contrary rulings later in the case.  Because appellants do not cite any authority to support this argument, it is waived.  See Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519, 187 N.W.2d 133, 135 (1971) (stating “assignment of error based on mere assertion and not supported by any argument or authorities in appellant’s brief is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection.”).  Appellants’ argument completely disregards the statutory procedure that allows for an answer to the writ and for the matter to proceed as a civil case.  Clearly, the district court did not err by considering the answer and determining that sufficient cause had been shown to defeat the issuance of a peremptory writ. 

2.      Temporary Injunction


            Appellants argue that the district court abused its discretion by denying their motion for a temporary injunction against Bruggeman to stop the development.  The party seeking an injunction must make a threshold showing that there is an inadequate legal remedy “and that the injunction is necessary to prevent great and irreparable injury.”  Cherne Indus., Inc. v. Grounds & Assocs., Inc., 278 N.W.2d 81, 92 (Minn. 1979) (citations omitted).  Whether to grant a temporary injunction is left to the discretion of the district court, and an appellate court will not reverse the district court’s decision absent a clear abuse of discretion.  Carl Bolander & Sons Co. v. City of Minneapolis, 502 N.W.2d 203, 209 (Minn. 1993).  This court will not set aside findings made by the district court regarding entitlement to injunctive relief unless those findings are clearly erroneous.  LaValle v. Kulkay, 277 N.W.2d 400, 402 (Minn. 1979).  We view the facts alleged in the light most favorable to the prevailing party.  Pacific Equip. & Irrigation, Inc. v. Toro Co., 519 N.W.2d 911, 914 (Minn. App. 1994), review denied (Minn. Sept. 16, 1994).

            Whether this court should uphold the district court’s decision turns on five factors:  (1) the nature and background of the parties; (2) the harm to be suffered if the temporary restraint is denied as compared to that inflicted on a defendant if the injunction is issued;  (3) the likelihood that one party or the other will prevail on the merits;  (4) public policy as expressed in the statute; and (5) the administrative burdens of judicial supervision and enforcement.  Bell v. Olson, 424 N.W.2d 829, 832 (Minn. App. 1988) (citing Dahlberg Bros., Inc. v. Ford Motor Co., 272 Minn. 264, 274-75, 137 N.W.2d 314, 321-22 (1965)).  Here, the nature and background of the parties is not significant, and an injunction was unlikely to create any administrative burdens.  Because the City’s ordinance expresses an interest in the preservation of trees, the fourth factor is satisfied.  In denying the injunction, however, the district court focused on the second and third factors.  In considering the second factor – harm to be suffered – the district court found that a temporary restraining order would irreparably damage Bruggeman and noted that appellants refused to assume any financial responsibility for resulting economic harm.  With regard to the third factor – likelihood of success on the merits – despite allegations adopted by the district court to support the (by-then resolved) alternative writ, the City’s answer raised defenses that cast doubt on appellants’ likelihood of success on the merits.  Cf. Sanborn Mfg. Co. v. Currie, 500 N.W.2d 161, 165 (Minn. App. 1993) (stating prospect for balancing considerations does not exist where plaintiff shows no likelihood of success).  The district court did not abuse its discretion by denying appellants’ motions for a restraining order and for a temporary injunction.

3.      Rational Basis for Rezoning

Appellants state that they never raised as a factual issue whether the rezoning was rational, but argue that the judge who issued the alternative writ “had decided” that the rezoning was so arbitrary and capricious as to constitute a clear abuse of discretion, was without factual basis, was not supported with findings and that the City had failed to comply with its ordinance requirements, and that this “decision” is res judiciata.  As we have stated above, appellants are incorrect in their argument that their mere assertion of the preliminary bases for and the resulting grant of that alternative writ preclude the examination of those bases once they are disputed.  We also agree with the district court that the City had a rational basis for the rezoning.  When zoning or rezoning, a city acts in a legislative capacity.  Honn v. City of Coon Rapids, 313 N.W.2d 409, 416 (Minn. 1981).  The standard of review in zoning and rezoning matters is whether the local authority’s action was reasonable.  VanLandschoot v. City of Mendota Heights, 336 N.W.2d 503, 508 (Minn. 1983).  This standard is typically expressed as: whether there is a rational or “reasonable basis” for the decision; whether the decision is “unreasonable, arbitrary or capricious;” or whether the decision is “reasonably debatable.”  Honn, 313 N.W.2d at 417.  A court’s authority to interfere with a city’s municipal affairs is limited and should be sparingly invoked.  See White Bear Docking & Storage, Inc. v. City of White Bear Lake, 324 N.W.2d 174, 176 (Minn. 1982); State ex rel. Howard v. Village of Roseville, 244 Minn. 343, 348, 70 N.W.2d 404, 407 (1955) (“Even where the reasonableness of a zoning ordinance is debatable, or where there are conflicting opinions as to * * * the suitability for residential purposes of property so designated thereby, it is not the function of the courts to interfere with the legislative discretion on such issues.”).  The fact that this court might have reached a different result does not serve to invalidate the judgment of city officials in the exercise of their broad discretion.  White Bear Docking, 324 N.W.2d at 176.

Here, the City’s rezoning was applied on a citywide basis.  Cf. State ex rel. Howard, 244 Minn. at 347, 70 N.W.2d at 407 (noting no appearance of arbitrariness where zoning applied uniformly upon all persons similarly situated in the particular district).  The rezoning process took three years and public hearings were held to receive input.  Appellants fail to demonstrate that the City’s rezoning was unreasonable, arbitrary, capricious, or without a rational basis.  At the most, the City’s decision would be reasonably debatable, and we refrain from interfering.  Appellants argue that the City’s rezoning of the property should be overturned due to the City’s lack of findings of fact.  Nevertheless, this court only examines a city’s action to ascertain whether it was arbitrary and capricious, or whether the reasons assigned by the city “do not have ‘the slightest validity’ or bearing on the general welfare of the immediate area, or whether the reasons given by the body were legally sufficient and had a factual basis.”  VanLandschoot, 336 N.W.2d at 508 (quoting White Bear Docking, 324 N.W.2d at 176). “Reasons” only are required – not findings of fact, and the City articulated sufficient reasons for its rezoning decision.  Moreover, the City engaged in a three-year process of updating its zoning ordinance and zoning map, which incorporated significant public input and debate.  The district court correctly concluded that the City’s rezoning had a rational basis.

4.      Forest Protection Regulations

Appellants argue that the City violated the Forest Protection Regulations found in its zoning ordinance.  Interpretation of a zoning ordinance is a question of law, reviewed de novo.  Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn. 1980).  We interpret a zoning ordinance according to the plain and ordinary meaning of its terms and in light of its underlying policy.  Id. at 608-09; cf. City of Duluth v. Sarette, 283 N.W.2d 533, 537 (Minn. 1979)  (construing ordinance in a manner that reflects intent of the city); Rasmussen v. Glass, 498 N.W.2d 508, 512 (Minn. App. 1993) (applying requirement under Minn. Stat. § 645.16 (1990) that “[e]very law shall be construed, if possible, to give effect to all its provisions,” to city ordinance), review granted (Minn. June 9, 1993) and appeal dismissed (Minn. July 14, 1993).  Zoning ordinances are strictly construed against a city and in favor of the property owner.  Chanhassen Estates Residents Ass’n v. City of Chanhassen, 342 N.W.2d 335, 340 (Minn. 1984).

The City’s zoning ordinance contains the following provision:

7.01    Forest Protection Regulations


* * * *


3.   Restrictions

a.       No development permit may be issued for any development unless the development is in compliance with the following standards:


1)  Development must be conducted so that the maximum number of trees are preserved by the clustering of structures in existing cleared areas and natural clearings.


* * * *


3)When trees are lawfully removed, the permittee must restore the density of trees that existed before the development.  Comparable nursery stock must be utilized, but not more than ten trees per acre are required.


                                    4) Development may not reduce the existing crown cover greater than 50 percent and may preserve the under-story.


                                            * * * * .


Chisago City, Minn., Zoning Ordinance § 7.01 (2000) (emphasis added).  Appellants argue that the City breached its mandatory duty to “cluster” the houses in the three “existing cleared areas and natural clearings” identified by appellants.  The ordinance does not define “clustering” or “existing cleared areas and natural clearings” and does not describe how clustering should be achieved or measured.

Although this court reviews the ordinance independently, we are persuaded by the district court’s reasoning that the Forest Preservation Regulations should be read as part of the entire zoning scheme and that appellants’ interpretation of “clustering” would yield “absurd results” because where a parcel of property had no existing cleared areas or natural clearings, no development could take place despite zoning designations that allow for development.  Appellants assert that only three cleared areas exist on this property upon which development can occur.  The district court found that this interpretation is not supported by the language in the zoning ordinance and agreed with the City’s interpretation of the regulations as requiring buildings to be situated on lots in such a way as to preserve the maximum number of trees on each lot.  Because the Forest Protection Regulations are ambiguous and do not define the concepts of “clustering” and “existing cleared areas and natural clearings,” we must resolve any ambiguity in favor of the property owner, Bruggeman.  See Frank’s Nursery Sales, 295 N.W.2dat 608-09.  The district court did not err by rejecting appellants’ interpretation of the regulations or by finding that the City had complied with the regulations by considering the siting of buildings on each lot.  The district court noted that Bruggeman was required to submit a Tree Inventory Landscape Plan, which cataloged and demarcated trees that would be saved and trees that would be cut down, and demonstrated that the siting of each home on each lot preserved the maximum number of trees.  Approval of this plan demonstrates the City’s effort to serve the overall intent of the Forest Protection Regulations and to balance the preservation of trees against the City’s desire for development.

5.  Approval for Bruggeman’s Development Plan

Appellants argue that Bruggeman’s submission of a plan for single-family residences in May 2000, after Bruggeman withdrew its plan for townhouses in April 2000, violated the City’s zoning ordinance, which provides:

Whenever any permit is denied or withdrawn, no new application for the same or substantially the same project may be filed for a period of one (1) year from the date of said denial or withdrawal.


Chisago City, Minn., Zoning Ordinance § 2.16 (2000) (emphasis added).  We agree with the district court that the plan for townhouses and the plan for single-family residences are not substantially the same.  Separate sections of the City’s zoning ordinance govern townhouses and single-family residential homes.  There are different requirements for townhouses and single-family homes, including lot sizes and setback widths and depths.  The zoning ordinance requires 400 square feet of useable open space per townhouse and a maximum density of six townhouse units per acre.  The plans contain other apparent differences, including the number of dwellings (over 40 townhouses as compared with 24 single-family homes), construction and design differences, the difference in “footprint” of the two structures, road alignments, and landscaping/grading differences.  The district court did not err in concluding as a matter of law that Bruggeman’s single-family residence plan and the townhouse plan are not the same or substantially the same project. 

Appellants argue that the City’s zoning ordinance requires it to make written factual findings required by § 2.11 of the zoning ordinance:

Findings Required.

            Prior to action on any permit application, the hearing body shall make findings with respect to the manner in which the proposed project conforms to the appropriate requirements as outlined in this title and the purposes of the Comprehensive Plan. [4]


Chisago City, Minn., Zoning Ordinance § 2.11 (2000) (emphasis added).  Appellant argues that this section requires findings as to how the proposal conforms to the Forest Protection Regulations and the seven “approval factors” the Planning Commission must consider in reviewing a preliminary plat under § 3, subd. 6.E of the City’s subdivision ordinance.  The City and Bruggeman contend that the approval process is governed by the City’s subdivision ordinance, which does not require factual findings. 

Regardless of which provision governs, however, the district court found that the City complied with the requirements by issuing a form entitled “Findings of Fact,” which outlined reasons used to determine whether granting the approval would: (1) impair adequate light and air; (2) unreasonably increase congestion in the public right-of-way; (3) increase the risk of fire or endanger public safety; (4) unreasonably diminish neighborhood property values; (5) unreasonably strain existing municipal facilities; and (6) alter the essential character of the area.  The City Council expressly responded in the negative to each concern.  Although not marked in the affirmative or negative, the document also expressed the concern over whether “the proposal [is] in conformance with the spirit and intent of the zoning ordinance.”  Cf. Corwine v. Crow Wing County, 309 Minn. 345, 352, 244 N.W.2d 482, 486 (1976) (holding that when 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), overruled on other grounds by Northwestern College v. City of Arden Hills, 281 N.W.2d 865 (Minn. 1979).  The district court did not err by determining that the City’s approval of the plan was not unreasonable, arbitrary, or capricious and that the reasons given by the City for approval are legally sufficient and supported by the record. 

6.      Recusal


            Appellants brought a motion requesting that the district court judge recuse himself based on alleged bias.  The judge denied appellants’ motion.  Denial of a recusal motion is within the district court’s discretion and should not be reversed absent clear abuse of that discretion.  See Durell v. Mayo Found., 429 N.W.2d 704, 705 (Minn. App. 1988), review denied (Minn. Nov. 16, 1988) (“Whether to honor a request for removal based on allegations of actual prejudice is a matter for the trial court’s discretion.”).

            Appellants fail to establish any basis for their allegations of bias and prejudice, other than unsubstantiated assertions of “a pattern of favoritism and a disregard for the laws of mandamus to the point where [appellants] were prejudiced” and generalized complaints about the judge’s rulings.  As discussed earlier, the judge correctly followed mandamus procedure, and nothing in the record supports appellants’ other vague assertions.  The district court did not abuse its discretion in refusing to grant appellants’ recusal motion.



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

[1] Nothing in the record supports this assertion.  This court has not been provided with a transcript of the August 31, 2000 hearing.  See Minn. R. Civ. App. P. 110.01 (indicating that the record on appeal consists of the “papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any”).

[2] A few days prior to oral argument before this court, the City and Bruggeman asserted, by letter, that the case was moot because Bruggeman had submitted a newer development plan, which the City approved, and therefore the issues were no longer in dispute.  Appellants disagreed.  Because there are issues that survive Bruggeman’s withdrawal of the single-family-development plan, the case is not moot.

[3] Appellants argue they were entitled to a trial.  Where the facts are substantially undisputed, the mandamus court need not grant a trial and may decide questions of law.  State ex rel. Pillsbury, 291 Minn. at 333 n.9, 191 N.W.2d at 413 n.9; cf. Popp v. County of Winona, 430 N.W.2d 19, 23 (Minn. App. 1988) (noting district court properly ruled, as a matter of law, that appellants were not entitled to mandamus relief, and therefore did not hold a trial), review denied (Minn. Nov. 23, 1988). Here, there is no dispute of material facts, and the district court correctly refused to hold a trial.

[4] The Comprehensive Plan outlines goals regarding the City’s growth and development, and sets out general recommendations for land uses and public improvements.  Although the Plan states: “How development occurs around the lakes * * * [a]ffects the character of the area and is an important planning issue,” it makes no mention of factual findings.