This opinion will be unpublished and

may not be cited except as provided by

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






Richard W. Carlson, et al.,





Town of Sunrise,



Filed April 16, 2002

Affirmed in part and remanded in part
Foley, Judge


Chisago County District Court

File No. C1991031


Barry L. Blomquist, 6356 Elm Street, North Branch, MN 55056 (for respondent)


Alan T. Tschida, 505 Tanglewood Drive, Shoreview, MN 55126 (for appellant)


            Considered and decided by Toussaint, Chief Judge, Shumaker, Judge, and Foley, Judge.

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            In this development dispute, appellant alleges the district court (1) improperly voided a town ordinance; (2) erred in ruling that a taking of property owned by respondents occurred; (3) erred in ruling that appellant adopted and was responsible to maintain a road on respondents’ development; and (4) should have granted appellant immunity for its actions.  Respondents argue that the district court’s amendment of its original order is defective because it is based on authority not presented to the district court until after trial.  We affirm in part and remand in part. 


            Respondents Richard Carlson and Marcy Adkisson (Carlson) purchased property in appellant Town of Sunrise and sought to develop it.  Various disagreements between Carlson and the town, including those related to a road for the development, delayed plat approval.  In October 1996, the parties entered into a developer’s agreement that addressed the requirements for a road in the development and stated that the town would maintain the road after “final acceptance” by the town.  The town signed the plat in April 1997.  In August 1997, Carlson began selling lots in the development and finished the road in October.  The parties then disputed whether the road met the specifications in the developer’s agreement and the town refused to inspect it. 

            At a December 1998 town meeting, the town, citing public health and safety issues, agreed to plow the road in the development, but disavowed acceptance.  In January 1999, without a hearing, the town adopted a driveway ordinance requiring permits for the construction or relocation of any driveway or culvert in the right-of-way of a town road or in the right-of-way of any road dedicated to, but not yet accepted by, the town.  Permits were not to be issued if a developer had not complied with an existing developer’s agreement.  In February 1999, the driveway ordinance was recorded with an affidavit of the town attorney stating that (1) the ordinance applied to Carlson’s development; (2) the town had not accepted the road on Carlson’s plat; (3) Carlson had not complied with the developer’s agreement; and (4) the town and the county agreed that no further driveway permits would be issued for Carlson’s plat until the developer’s agreement was satisfied. 

            Carlson sued the town.  In an amended complaint, Carlson alleged that (1) the town wrongfully precluded the sale of lots in the development; (2) the town had accepted the road; (3) the driveway ordinance was void because it was passed without a hearing; and (4) the affidavit of the town’s attorney should have no effect because Carlson was not given an opportunity to contest its allegations.  Carlson also alleged that a taking had occurred.  After the district court denied the town’s immunity-based motion for summary judgment, the town appealed.  This court dismissed the appeal because fact questions existed. 

            After a bench trial, the district court ruled that (1) the town lacked the authority to require the developer’s agreement; (2) the driveway ordinance was void for lack of a hearing; (3) the town had accepted and maintained the road and was required to continue to do so; and (4) the invalid developer’s agreement and driveway ordinance, which had precluded sale of lots in Carlson’s development, effected a taking of Carlson’s property.  The town then made posttrial motions, submitting ordinances and other authorities requiring a developer’s agreement.  Carlson objected to the district court considering these authorities.  In an amended order, the district court, based on the authorities submitted with the town’s posttrial motion, ruled that the developer’s agreement was valid and that the town was entitled to damages from Carlson for certain violations of the agreement, but left most of the rest of its original order intact.  Both parties challenge aspects of the district court’s ruling.  Neither party, however, has provided a transcript on appeal.



            Carlson argues that the authorities that the town submitted with its posttrial motion should not have been considered by the district court because they were not presented at trial.  The district court noted that while the town “arguably” should have presented the authorities at trial, fairness required that the case be resolved on the law and that the town’s posttrial submissions were not new factual information, but new information identifying the relevant law.[1]  By statute,

[c]opies of the ordinances * * * of any * * * town, or county, certified by * * * the chair of the town board and the town clerk in the case of a town, or by the county auditor or chair of the county board in the case of a county, and copies of the same printed in any newspaper, book, pamphlet, or other form, and which purport to be published by authority of the council of such * * * county board, shall be prima facie evidence thereof and, after three years from the compilation and publication of any such book or pamphlet, shall be conclusive proof of the regularity of their adoption and publication.


Minn. Stat. § 599.13 (2000).  Here, in addition to submitting the authorities in question, the town’s posttrial submissions included affidavits of the town’s attorney and the town’s clerk, both indicating that the town’s zoning ordinance had been in place since March 1978.  The town attorney’s affidavit stated that the county’s subdivision ordinance had been effective from 1987 until its amendment in May 1999, and the town clerk’s affidavit stated that the town’s road specifications had been in place since June 1994.  Thus, all of the authorities pass the three-year prong of the statute.  And Carlson makes no allegation that the district court misapplied them.  We note that even if the authorities were presented for the first time on appeal, consideration by this court would be proper.  Cf. State v. Hannuksela, 452 N.W.2d 668, 673 n.7 (Minn. 1990) (stating “it is the responsibility of appellate courts to decide cases in accordance with law, and that responsibility is not to be ‘diluted by counsel’s oversights, lack of research, failure to specify issues or to cite relevant authorities’”) (citation omitted and emphasis added); Greenbush State Bank v. Stephens, 463 N.W.2d 303, 306 n.1 (Minn. App. 1990) (applying Hannuksela in a civil case), review denied (Minn. Feb. 4, 1991). 

            Carlson also argues that the district court’s consideration of the authorities must have been based on judicial notice and that therefore he was entitled to be heard regarding the validity of those ordinances.  See Minn. R. Evid. 201(e) (addressing hearings regarding facts of which court takes judicial notice).  But, rule 201 “governs only judicial notice of adjudicative facts in civil cases.”  Minn. R. Evid. 201(a) (emphasis added).  “Adjudicative facts generally are the type of facts decided by juries.”  Minn. R. Evid. 201(a) 1989 cmt.  Because the existence and validity of ordinances are not “facts decided by juries,” rule 201 is inapplicable here. 


            The district court ruled that the driveway ordinance was void because the promulgation of the ordinance without an evidentiary hearing violated Minn. Stat. § 462.357, subd. 3 (2000).[2]  The town alleges that the driveway ordinance was an exercise of its ability to regulate town roads under Minn. Stat. § 164.36 (2000), and therefore was passed under Minn. Stat. § 365.125 (2000), which does not require a hearing.[3]  We question whether the driveway ordinance fits Minn. Stat. § 164.36.  That the driveway ordinance may fit Minn. Stat. § 164.36, however, does not necessarily mean that the district court was wrong in finding it to be an “official control” under Minn. Stat. § 462.352, subd. 15 (2000).  “Official controls” are

ordinances and regulations which control the physical development of a city, county or town or any part thereof * * * or any detail thereof and implement the general objectives of the comprehensive plan.  Official controls may include ordinances establishing zoning, subdivision controls, site plan regulations, sanitary codes, building codes and official maps.


Minn. Stat. § 462.352, subd. 15 (2000) (emphasis added).  An ordinance that can preclude issuance of permits for driveways and culverts providing private property with necessary access to public roads and drainage regulates some “part” or “detail” of a development.  Id. Therefore, the ordinance was an “official control” and the district court correctly ruled that it could not be adopted without a public hearing.  See Minn. Stat. § 462.357, subd. 3 (2000) (stating “[n]o zoning ordinance or amendment thereto shall be adopted until a public hearing has been held thereon by the planning agency or by the governing body”); Minn. Stat. § 462.352, subd. 11 (2000) (stating “[g]overning body, * * * in the case of a town, means the town board”). 


            The district court ruled that Carlson’s property rights were adversely impacted by the wrongfully enacted driveway ordinance and that this constituted a taking of Carlson’s property for the period February 19, 1999 to February 16, 2001.  What Carlson sought in this aspect of the proceeding was, essentially, inverse condemnation.  See Stenger v. State, 449 N.W.2d 483, 484 (Minn. App. 1989) (stating inverse condemnation “must be brought through an action in mandamus”) (citing Thomsen v. State, 284 Minn. 468, 474, 170 N.W.2d 575, 580 (1969)), review denied (Minn. Feb. 28, 1990); see also City of Minneapolis v. Meldahl, 607 N.W.2d 168, 172 (Minn. App. 2000) (discussing nature of inverse condemnation process).  Where, as here, a taking allegedly occurred without physical invasion of property, “no firmly established test exists for determining when a taking has occurred[[4]], instead takings law turns largely on the particular facts underlying each case.”  Zeman v. City of Minneapolis, 552 N.W.2d 548, 552 (Minn. 1996) (emphasis added) (citing Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124, 98 S. Ct. 2646, 2659 (1978)).  Absent a transcript, we cannot review the district court’s fact-based determination that the town interfered with Carlson’s property.  See Duluth Herald & News Tribune v. Plymouth Optical Co., 286 Minn. 495, 498, 176 N.W.2d 552, 555 (1970) (noting lack of a transcript precludes review of factual questions); Fritz v. Fritz, 390 N.W.2d 924, 925 (Minn. App. 1986) (ruling appellate court cannot review findings of fact where transcript not provided).


            Generally, filing a plat under Minn. Stat. § 505.01 (2000) conveys to the public the interest in roads on the plat “necessary to accomplish the purpose of the dedication and no acceptance by the governing body is necessary.”  In re Maintenance of Road Areas Shown on Plat of Suburban Estates, 311 Minn. 446, 451, 250 N.W.2d 827, 831 (1977).  At oral argument, the town candidly admitted that Carlson’s plat had been filed.  We appreciate the town’s candor on this point.  Under Suburban Estates, even after a plat has been filed, however, “the municipality may determine the time it will open a street and assume the maintenance thereof.”  311 Minn. at 451, 250 N.W.2d at 831.  Here, the developer’s agreement states that the town “will maintain the road after final acceptance.”  The developer’s agreement, however, does not address whether the “final acceptance” mentioned therein referred to (1) the town’s “acceptance” of a road, which functionally occurred when the plat was filed, or (2) the town’s verification that the road requirements in the developer’s agreement had been adequately satisfied, or (3) something else.  The district court did not explicitly address the meaning of the phrase “final acceptance” or whether the road satisfied the developer’s agreement, and the lack of a transcript precludes us from knowing what evidence, if any, was offered on these points at trial.  Therefore, we remand for the district court to explicitly construe the phrase “final acceptance” in the developer’s agreement and, if necessary, to explicitly determine whether the road satisfied the requirements therein.


            The district court denied the town’s motion for summary judgment because fact questions existed regarding the parties’ performance “of their respective agreements.”  This court dismissed the town’s appeal of that ruling for the same reason.  In the current appeal, the town again alleges it is entitled to immunity. 

            Municipalities, including towns, are liable for the torts of their “officers, employees, and agents acting within the scope of their employment or duties whether arising out of a governmental or proprietary function.”  Minn. Stat. § 466.02 (2000); see Minn. Stat. § 466.01, subd. 1 (2000) (defining “municipality” to include towns).  Exceptions exist for claims based on “the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused” and “for a loss other than injury to or loss of property or personal injury or death.”  Minn. Stat. § 466.03, subds. 6, 8 (2000).  The town alleges that its passage of the driveway ordinance, acceptance of Carlson’s plat, and decision to make final approval of the plat conditional, are all discretionary functions and therefore excepted from liability under Minn. Stat. § 466.02.  The judgment, however, does not explicitly address immunity.  Thus, while the district court’s determination that the town is liable to Carlson for what it found to be a taking indicates implicit rejection of the town’s assertion of immunity, its reasoning is unclear.  Absent a transcript, this court cannot address the possibility that the rejection of immunity involved fact questions.  See Duluth Herald & News Tribune v. Plymouth Optical Co., 286 Minn. 495, 498, 176 N.W.2d 552, 555 (1970) (noting lack of transcript precludes review of factual questions); Fritz v. Fritz, 390 N.W.2d 924, 925 (Minn. App. 1986) (ruling appellate court cannot review findings of fact where transcript not provided).  Additionally, as noted, at least one aspect of the developer’s agreement is ambiguous and must be construed by the district court.  Whether the parties have fulfilled their “respective agreements” is still unclear.  Therefore, on remand, the district court must explicitly address the immunity question. 

            Also on remand, whether to reopen the record shall be discretionary with the district court.  Additionally, if the district court’s determinations on remand require adjustment of its ruling on the takings question, that ruling shall be adjusted accordingly.

            Affirmed in part and remanded in part.

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


[1] To the extent that the district court also ruled that it considered the authorities because it was amending its findings under Minn. R. Civ. P. 59.01(c), it erred.  Rule 59.01(c) does not address amended findings; it addresses new trials for “[a]ccident or surprise which could not have been prevented by ordinary prudence.”

[2] While the 2000 statutes were not in effect at the times of the events relevant to this appeal, in this opinion we cite the 2000 statutes because the relevant parts of the applicable statutes have not been substantively amended since those events.  See McClelland v. McClelland, 393 N.W.2d 224, 226-27 (Minn. App. 1986), review denied (Minn. Nov. 17, 1986).

[3] The town also makes an argument based on certain (allegedly) uncontradicted testimony of the town clerk.  Absent a transcript of the trial, however, this court cannot review that argument. 

[4] See Last Chance Min. Co. v. U.S., 12 Cl. Ct. 551, 556 (Cl. Ct. 1987) (stating “[a]lthough physical invasion and physical restraint are not necessary, the Supreme Court has said that a ‘taking’ may be more readily found when the interference with property can be characterized as a physical invasion by the government” and “[n]umerous commentators have reflected the diversity of opinion and the apparent lack of cohesiveness in this body of law”) (emphasis added and citations omitted).