This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Marohn’s Buffalo Marketplace, et al.,


City of Buffalo,




TKG Wright County Center, L.L.C.,



Filed December 17, 2002


Mulally, Judge*


Wright County District Court

File No. C0012375


Thomas P. Melloy, Gray, Plant, Mooty, Mooty & Bennett, P.A., 1010 West St. Germain, Suite 600, St. Cloud, MN  56301 (for appellants)


Gordon H. Hansmeier, Rajkowski Hansmeier Ltd., 11 Seventh Avenue North, P.O. Box 1433, St. Cloud, MN  56302 (for respondent City of Buffalo)


William R. Skallerud, Sonnenschein, Nath & Rosenthal, 630 Pillsbury Center North, 200 South Sixth Street, Minneapolis, MN  55402; and


Thomas J. Pastrnak, Pastrnak Law Firm, P.C., 313 West Third Street, Davenport, IA  52801 (for respondent TKG Wright County Center)


            Considered and decided by Randall, Presiding Judge, Willis, Judge, and Mulally Judge.

U N P U B L I S H E D   O P I N I O N


            In this zoning dispute, appellants sought to compel respondent-city to set aside its decision to rezone certain property.  On appeal from the district court’s denial of appellant’s request, appellants argue that (a) in deciding to rezone the property, the city failed to follow its own ordinances; (b) the city’s failure to follow its own ordinances was not merely a technical mistake; and (c) the city’s rezoning decision is inconsistent with both the relevant ordinances and with a prior decision to deny rezoning of the property.  The city argues that the appeal is moot.  The case is not moot.  Also, any procedural defects are only technical and the city’s zoning decision is not inconsistent with the relevant ordinances.  Therefore, we affirm. 


            To facilitate the expansion of a Wal-Mart store, respondent TKG Wright County Center, L.L.C. (TKG), applied to rezone certain land in respondent City of Buffalo.  At an April 2, 2001 meeting, the city council passed a motion to deny the application.  At a June 18 meeting, the council granted TKG’s motion for reconsideration and, at a July 16 meeting, the council voted to rezone the land.  People opposed to the rezoning then sued the city, alleging that, in granting the rezoning, the city had not followed its own procedures nor the relevant ordinances contained in the city’s code.  After the district court allowed TKG to intervene in that suit, the parties stipulated to the record on which the district court would decide the matter and the district court refused to set aside the city’s decision to allow the rezoning.  Those opposed to the rezoning appeal. 


            On appeal from a district court’s decision in a zoning matter, appellate courts

give no deference to the trial court’s findings and conclusions.  Where the municipal proceedings are fair and complete, review is on the record before the municipal agency.  This court is reluctant to interfere with the management of municipal affairs.


Rowell v. Bd. of Adjustment, 446 N.W.2d 917, 919 (Minn. App. 1989) (citations omitted), review denied (Minn. Dec. 15, 1989).


            Citing Apple Valley Square v. City of Apple Valley, 472 N.W.2d 681, 683 (Minn. App. 1991), the city argues that the appeal must be dismissed as moot because, after rezoning the property, the planning commission and the city council approved TKG’s planned unit development for the project.  Appellants argue that mootness is not properly before this court because TKG did not present that argument to the district court.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating appellate courts generally address only those issues presented to and considered by the district court).  “As a constitutional prerequisite to the exercise of jurisdiction, [appellate courts] must consider the mootness question even if ignored by the parties.”  In re Schmidt, 443 N.W.2d 824, 826 (Minn. 1989) (citation omitted).  Therefore, we must address the mootness question.

            An issue is moot if an award of effective relief is impossible.  Apple Valley, 472 N.W.2d at 683.  Apple Valley is distinguishable.  There, this court agreed with the district court’s ruling that a rezoning issue was moot where there had been “substantial investment by the developers[,]” “the physical development of the property [was] nearly complete[,] and the stores ha[d] opened their doors for business.”  Id.  The record here does not show that the Wal-Mart project is nearly complete nor that the expanded store is open for business.  This appeal is not moot under Apple Valley


            The city code provision governing city council meetings states: “Robert’s Rules of Order (Newly Revised) shall govern all Council meetings as to procedural matters not set forth in the City Code.”  Buffalo, Minn., City Code § 2.04 (1994).  Regarding zoning matters:

Whenever an application for an amendment has been considered and denied by the Council, a similar application for the amendment affecting substantially the same property shall not be considered again by the Planning Commission or Council for at least six (6) months from the date of its denial; unless a decision to reconsider such matter is made by not less than four-fifths (4/5) vote of the full Council.


Id., § 11.06 N (1994).  According to Robert’s Rules of Order:

The effect of the adoption of the motion to Reconsider is immediately to place before the assembly again the question on which the vote is to be reconsidered—in the exact position it occupied the moment before it was voted on originally. 


Henry M. Robert III et al., Robert’s Rules of Order Newly Revised § 37 at 313 (10th ed. 2000).  Citing this provision, appellants argue that the city violated its procedural requirements by passing a motion to reconsider and then, when “reconsidering,” passing a motion to grant rezoning rather than re-voting on the previous motion to deny rezoning.  Appellants allege that this is a defective procedure because, without reconsidering the motion to deny the rezoning request (a) the procedure violates Robert’s Rules of Order regarding reconsideration; and (b) absent a new vote on the motion to deny the rezoning request, the prior vote stands; meaning that the July “reconsideration” of rezoning the property conflicts with, and occurred within six months of, the April denial of that request, thereby violating section 11.06 N of the code. 

            To prevail on appeal, appellants must show both error and prejudice resulting from the alleged error.  Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975); see Minn. R. Civ. P. 61 (requiring harmless error to be ignored); cf. Katz v. Katz, 408 N.W.2d 835, 839 (Minn. 1987) (stating trial court will not be reversed where it reaches right result for wrong reason)[1].  Here, appellants do not argue that the decision to rezone is substantively defective.  Their reply brief states:

The appellants in their statement of issues and in their opening brief did not argue that the final outcome was unreasonable or could not be sustained on appeal.  The specific argument of the appellants is that “where the council has approved an application with a defective process, the reviewing court should not decide if the council’s decision was substantively right or wrong.” 


Absent an allegation of prejudice, (a) altering the decision to rezone would violate the harmless error rule; and (b) why the decision to rezone should be altered, is unclear[2].

            Also, the city notes that it adopted Robert’s Rules of Order “as to procedural matters not set forth in the City Code” and argues that Robert’s Rules of Order are inapplicable to reconsideration of zoning matters because code section 11.06 N allows reconsideration of the application rather than of a motion to grant or deny the application.  Buffalo, Minn., City Code § 2.04 (emphasis added).  The rules used for construing statutes apply to construing ordinances.  State v. Simonsen, 252 Minn. 315, 328, 89 N.W.2d 910, 918 (1958).  Statutes cannot be construed unless the provision in question is ambiguous.  State by Beaulieu v. RSJ, Inc., 552 N.W.2d 695, 701 (Minn. 1996).  Here, the code states that “[w]henever an application for an amendment” is denied, a “similar” application cannot be considered “for at least six (6) months from the date of its denial; unless a decision to reconsider such matter is made by not less than four-fifths (4/5) vote of the full Council.”  Buffalo, Minn., City Code § 11.06 N (emphasis added).  The code is unclear about whether the “such matter” that is to be reconsidered is the denial of the application or the (similar) application, itself.  Because the code is susceptible to at least two meanings, it is ambiguous.  Hamline-Midway Neighborhood Stability Coalition v. City of St. Paul, 547 N.W.2d 396, 399 (Minn. App. 1996), review denied (Minn. Sept. 20, 1996). 

            When a court must decide how to construe an ordinance, a city’s action based on its interpretation of the ordinance is “not determinative” but is “entitled to some weight.”  Chanhassen Estates Residents Ass’n v. City of Chanhassen, 342 N.W.2d 335, 340 (Minn. 1984) (citation omitted).  Here, the city’s reading of its code to allow reconsideration of the application is not inconsistent with the code’s wording and would be consistent with (a) the way the city treated the vote occurring on reconsideration; (b) comments made by various city officials at the city council meetings which assume that it was the rezoning application (rather than the motion to deny the application) that was being reconsidered at the July 16 hearing; and (c) the district court’s finding that no one objected to the mayor’s characterization of the motion to reconsider as one “to reconsider rezoning of the property.”[3]  The failure to object to the mayor’s characterization of the motion means appellants are estopped from objecting to the alleged mischaracterization of the motion.  See Rowell, 446 N.W.2d at 920 (stating party was estopped from objecting to variance on grounds that application was defective where party attended hearing, had opportunity to speak, and had counsel). 

            Reading code section 11.06 N to allow reconsideration of rezoning applications while reading section 2.04 (adopting Robert’s Rules of Order) to require reconsideration of the motion to deny that application, creates a conflict between the two provisions.  When statutory provisions conflict, specific provisions prevail over general provisions.  Minn. Stat. §645.26, subd. 1 (2002).  Reading the code to allow reconsideration of the application (under the specific Buffalo, Minn., City Code § 11.06 N) rather than to require reconsideration of the motion to deny the application (under Robert’s Rules of Order and the generally applicable Buffalo, Minn., City Code § 2.04) is consistent with the portions of the record cited above and with Minn. Stat. § 645.26, subd. 1.  Therefore, we will not reject the city’s reading of its own ordinance.


            If the motion to deny rezoning had to be readdressed and rejected before a vote could occur on the motion to grant the application, the failure to do so was procedurally improper.  Whether a procedural defect requires reversal depends on whether the defect is “technical”:

Technical defects made when complying with procedural requirements do not suffice to overturn governmental action, so long as the defects do not reflect bad faith, undermine the purposes of the procedures, or prejudice the rights of those intended to be protected by the procedures. 


Rowell, 446 N.W.2d at 919 (citing City of Minneapolis v. Wurtele, 291 N.W.2d 386, 391 (Minn. 1980)).  Here, appellants do not allege bad faith by the city.  Nor do they allege that the decision to rezone the property is substantively defective.  Thus, the question becomes whether any procedural impropriety undermined the procedures’ purposes.  Here, appellants argue that (a) the city’s procedure violates the six-month prohibition on reconsidering similar zoning matters set out in code section 11.06 N; and (b) it cannot be properly inferred that, if the city had reconsidered the motion to deny the application, it would have rejected that motion.  The first prong of this argument depends on the viability of the second prong of the argument. 

            While the 4-1 vote to grant rezoning at the July 16 meeting shows that a majority of the council favored rezoning, appellants cite the opinions in Earthburners, Inc. v. County of Carlton, 504 N.W.2d 66 (Minn. App. 1993), rev’d 513 N.W.2d 460 (Minn. 1994) to support their argument that rejection of the motion to deny cannot be inferred to be the result of any reconsideration which should have occurred.  Appellants maintain that both opinions show judicial concern for requiring local government entities to follow their procedures when addressing zoning matters.  Earthburners, however, is distinguishable.  There, (a) at the public hearing on a permit application, the board chair stated that “this whole thing is much more complex than we have the time to give it” and suggested adopting the planning commission’s recommendation to deny the application; (b) the board denied the application, citing “public testimony presented in opposition” as its only reason for doing so; (c) this court ruled that the record and procedures were defective and affirmed the district court’s grant of summary judgment that the applicant was entitled to the permit; and (d) the supreme court agreed that the procedure and record were inadequate, noted that the comments on the limited record that was presented indicated that the decision was premature, and remanded for the county to reconsider the application.  Earthburners, 513 N.W.2d at 461-63. 

            Here, when the council originally denied the rezoning, it found that the rezoning was inconsistent with aspects of the city’s Comprehensive Plan and would have an adverse traffic impact on the area.  At the July 16 meeting, however, both council members who changed their votes to approve the rezoning indicated that the prior denial might have been premature because of the limited information that had been presented to the council.  Additionally, an engineer presented new traffic information showing that even after Wal-Mart expands, the relevant roads would still maintain the highest possible service rating.  Similarly, the mayor presented research regarding the city’s Comprehensive Plan and the council’s prior willingness to rezone to accommodate commercial ventures.  Thus, at the July 16 meeting, (a) additional information was presented eliminating one of the prior reasons cited for denying the rezoning; (b) research suggested that the prior denial was not consistent with the council’s prior zoning flexibility; and (c) the two council members indicated that, in retrospect, they did not feel that they were fully informed when they made their prior votes.  Also, the council listed six reasons for granting the rezoning, none of which included public opinion.  Thus, the Earthburners’ defects are absent here.  On these facts, we cannot avoid the inference that the motion to deny rezoning would have been rejected if it had been reconsidered and hence that any procedural impropriety is merely technical. 


            City code section 11.06, subdivision 1(D)(1, 2) requires “[t]he Planning Commission” to consider possible adverse effects of the proposed zoning amendment and states that the commission’s judgment “shall be based upon (but not limited to)” certain factors, including whether the proposed rezoning is consistent with the city’s Comprehensive Plan and whether the proposed use of the land “will be compatible with present and future land uses of the area.”  Buffalo, Minn., City Code § 11.06, subd. 1(D) (1, 2) (1994).  Appellants challenge the district court’s ruling that these provisions applied to the planning commission, but not the city council.  Because the plain meaning of the provision deals with the criteria the planning commission uses to make recommendations to the council, the district court correctly ruled that the provision applies to the planning commission rather than the council.  See Schiff v. Griffin, 639 N.W.2d 56, 61 (Minn. App. 2002) (stating that unambiguous ordinances are given their “plain meaning”).  This does not mean, however, that the council can ignore the Comprehensive Plan when making zoning decisions.  See Buffalo, Minn., City Code § 11.01, subd. 2 (stating “[t]he Council recognizes the Comprehensive Plan as the policy for regulating land use and development in accordance with the policies and purposes herein set forth”).  That the decision made on reconsideration was based on additional information that cast considerable doubt on the original decision addresses appellants’ argument that rezoning the land is inconsistent with the Comprehensive Plan.

            Appellants also argue that the city’s decision to rezone the property was inconsistent with the prior decision to deny the rezoning.  Because code section 11.06 N allows reconsideration of the application rather than the motion to deny that application, an inconsistency between the original ruling and ruling made on reconsideration cannot be fatal to the decision made on reconsideration. 


*   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] That a correct decision will not be reversed because it is based on incorrect reasons addresses appellants’ argument that the procedural defects in the city’s proceedings are not saved by a reasonable outcome of these proceedings. 

[2] TKG argues that any procedural irregularities in the city’s proceedings were rendered “moot” by the “fair forum” in which the reconsideration occurred.  While this argument is phrased in terms of mootness, it is, essentially, an argument that any defects in the city’s procedures were harmless.

[3] Appellants challenge this finding, alleging it is inconsistent with comments by a person who spoke at the July 16 meeting.  Appellants’ argument is inconsistent with both the transcript and minutes of the meeting.  Cf. Minn. R. Civ. P. 52.01 (stating district court’s findings will not be set aside unless clearly erroneous).