This opinion will be unpublished and

may not be cited except as provided by

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







Taylor J. O’Shea,





City of Minneapolis,



Filed March 4, 2003

Affirmed in part and reversed in part

Lansing, Judge


Hennepin County District Court

File No. 0112433



Bradley J. Gunn, Leonard, Street & Deinard, P.A., Suite 2300, 150 South Fifth Street, Minneapolis, MN  55402 (for respondent)


Jay M. Heffern, Minneapolis City Attorney, Scott Reeves, Assistant City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN  55402 (for appellant)


            Considered and decided by Minge, Presiding Judge, Shumaker, Judge, and Lansing, Judge.

U N P U B L I S H E D   O P I N I O N


The City of Minneapolis denied Taylor O’Shea’s application to subdivide a residential lot, and O’Shea brought a declaratory judgment action challenging the denial and raising due process and equal protection issues.  The district court granted summary judgment to the city on the due process and equal protection claims and to O’Shea on her claim that the city acted unreasonably in enforcing an impermissibly vague ordinance.  Because we conclude that the ordinance is not impermissibly vague, and because the city had a reasonable basis for the denial, we reverse that part of the summary judgment order.  We affirm the summary judgment on the due process and equal protection claims.


            This appeal involves property located on the northwest corner of Dupont Avenue South and Forty-seventh Street in Minneapolis.  The property is owned by Taylor O’Shea and is located within a zoning district (R1) comprised predominantly of single-family homes.  The O’Shea property exceeds fourteen thousand square feet and is larger than the area’s average lot size of approximately eleven thousand square feet.  The large, single-family home situated on the property is characteristic of the area.

O’Shea’s property comprises three platted lots but is a single zoning lot and is assessed as a single parcel.  All seven homes on O’Shea’s side of the Dupont Avenue block are oriented by width to Dupont.  One lot is sixty feet wide; all others are at least eighty feet wide.  O’Shea’s property is 110 feet wide.

            In August 1999, O’Shea applied for a minor subdivision to split her property into two parcels.  Under the proposed subdivision, parcel “A” would have a sixty-foot frontage on Dupont Avenue, would consist of 7,882 square feet, and would include the existing single-family home.  Parcel “B” would be situated on the corner of Dupont Avenue and Forty-seventh Street, with a fifty-foot frontage on Dupont and a 129-foot frontage on Forty-seventh Street, and would consist of 6,495 square feet.  O’Shea submitted a letter stating that parcel B would be sold for construction of a single-family home.  Five mature oak trees stand on parcel B, at least four of which would have to be removed to allow construction.

            The city planning department recommended denial of the application because the new lot would be ten feet short of a sixty-foot minimum lot-width requirement and because the subdivision would be detrimental to the large-lot characteristic of the district.  On October 25, 1999, the planning commission conducted a hearing and denied O’Shea’s application on these grounds.

            O’Shea appealed the denial of her application to the zoning and planning committee of the city council.  On November 16, 1999, the zoning and planning committee conducted a hearing and denied O’Shea’s appeal.  The matter was referred to the full city council, which voted on November 24, 1999, to uphold the zoning and planning committee’s decision.  The mayor approved the denial on November 30, 1999. 

            O’Shea then brought a declaratory judgment action challenging the denial as unreasonable and arbitrary and capricious and raising due process and equal protection claims.  The district court granted O’Shea summary judgment on her claim that the city acted unreasonably in enforcing an impermissibly vague ordinance, granted the city’s motion for summary judgment on the equal protection and due process claims, and declared that O’Shea’s inverse condemnation claim was moot.  The city appealed and O’Shea filed a notice of review.  Because O’Shea did not argue the inverse condemnation claim on appeal, that issue is considered waived.


            In reviewing the denial or approval of a subdivision application, we apply principles developed in analogous cases involving special-use permits.  VanLandschoot v. City of Mendota Heights, 336 N.W.2d 503, 508 n.6 (Minn. 1983); see also Honn v. City of Coon Rapids, 313 N.W.2d 409, 417 (Minn. 1981) (contrasting rezoning decisions, which are legislative in nature, with decisions on special-use permits, which are quasi-judicial in character).  A legislative policy-making decision is reserved to the city.  SLS P’ship v. City of Apple Valley, 511 N.W.2d 738, 741 (Minn. 1994).  But the interpretation of an ordinance and the manner in which it is applied are issues for judicial determination.  Id. 

In quasi-judicial determinations involving special-use permits or subdivision applications, a city’s policy decision is incorporated in the standard set out in the ordinance, and the inquiry focuses on whether the use proposed in the application is contrary to that standard.  Honn, 313 N.W.2d at 417.  In applying the standard we “strive to construe a term according to its plain and ordinary meaning,” we construe ordinances strictly against the city, and we consider an ordinance in light of its underlying policy.  SLS P’ship, 511 N.W.2d at 741.  We are also mindful of the requirement that a city may not base the denial of an application on land-use standards that are unreasonably vague.  C.R. Invs., Inc. v. Vill. of Shoreview, 304 N.W.2d 320, 327-28 (Minn. 1981).  In reviewing the manner in which the standard is applied, we examine the city’s action to ascertain whether it is unreasonable, arbitrary, or capricious.  VanLandschoot, 336 N.W.2d at 508; Hurrle v. County of Sherburne, 594 N.W.2d 246, 249 (Minn. App. 1999).


            The district court reversed the city’s denial of O’Shea’s minor-subdivision application on the ground that Minneapolis City Ordinance § 598.170(4), the provision prohibiting “reverse frontage lots,” is impermissibly vague.  Minneapolis, Minn., Code § 598.170(4) (1995).

Due process standards of definiteness require that persons of common intelligence not be left to guess at the meaning of a law, nor differ as to its application.  Connally v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 127 (1925); State v. Newstrom, 371 N.W.2d 525, 528 (Minn. 1985).  A law should not be invalidated as vague, however, merely because it is possible to imagine difficulty in determining whether certain marginal fact situations fall within its language.  United States v. Nat’l Dairy Prods. Corp., 372 U.S. 29, 32, 83 S. Ct. 594, 597 (1963);  Humenansky v. State Bd. of Med. Examiners, 525 N.W.2d 559, 564 (Minn. App. 1994), review denied (Minn. Feb. 14, 1995).  A municipal ordinance is presumed constitutional, and the burden of proving its unconstitutionality rests on the party attacking its validity.  City of St. Paul v. Dalsin, 245 Minn. 325, 329, 71 N.W.2d 855, 858 (1955).

The city denied O’Shea’s subdivision application, in part, because parcel B would have been only fifty feet wide rather than the required sixty-foot width along Dupont Avenue.  It is undisputed that the Minneapolis city ordinance (MCO) requires a sixty-foot-minimum lot width in O’Shea’s zoning district when there is no alley, and O’Shea’s property does not have an alley.  MCO §§ 538.150(1)(a); 598.170(2) (1995).  O’Shea contends, however, that if parcel B, which is located on the corner, is considered as fronting on Forty-seventh street, the lot width is more than adequate to meet the sixty-foot requirement.  But under MCO § 598.170(4) “reverse frontage lots, those platted in reverse orientation to the rest of the block, are not permitted.”

The district court found MCO § 578.170(4) impermissibly vague because the term “reverse frontage” is ambiguous and undefined in the ordinance.  But the term “reverse frontage lots” has a particular, designated meaning in land-use regulation.  It means lots fronting a different direction from the ordinary or primary frontage.  See Sullivan v. Planning Bd., 645 N.E.2d 703, 705 (Mass. App. Ct. 1995) (discussing local regulation requiring reverse frontage when subdivision “abuts or contains” arterial highway);Freilich & Schultz, Model Subdivision Regulations, § 5.2(4)(a) (1995) (discouraging use of double frontage or reversed-frontage lots).  The term “lot, reversed corner” is also used in another Minneapolis city ordinance.  See MCO § 522.40 (1995) (defining the term as “a corner lot, the side-street lot line of which is substantially a continuation of the front lot line of the first lot to its rear”).  Because the ordinance as written conveys a specific restriction that a person of common intelligence would understand, it is not impermissibly vague.

            O’Shea further reasons that, even if the ordinance withstands constitutional scrutiny, any ambiguity should be construed in her favor as the property owner.  See Olsen v. City of Hopkins, 276 Minn. 163, 170, 149 N.W.2d 394, 399 (1967).  The term “reverse frontage lots,” however, has a specific meaning that prohibits the subdivision that O’Shea proposes:  a lot fronting in a different direction from the ordinary or primary frontage.  This meaning is consistent with a legitimate legislative intent to preserve the integrity and uniformity of the streetscape in a district zoned for large-lot, single-family homes.

            O’Shea alternatively contends that even if the reverse-frontage standard can be applied, it is trumped by MCO § 522.40, which allows choice of frontage for corner lots.  The city correctly points out that section 522.40 relates to existing zoning lots of record, not proposed lots which have yet to be created.  Furthermore, section 598.280 specifically states that the more restrictive provisions in the ordinance will apply in the case of conflict.  In this case, by clear directive of the ordinance, the more restrictive provision of MCO § 598.140(4) (prohibiting lot frontage that does not reflect the other lots’ block frontage) prevails over the less restrictive provision of MCO § 522.40 (allowing owner choice on lot frontage).

            Finally, the city evaluated O’Shea’s application in light of MCO § 598.210, which sets out factors required for consideration of an application for subdivision approval.  The city found not only that the proposed subdivision would violate the reverse-front-lot provision, but also that it failed to meet the minimum lot-size requirement in the area.  The city also found that construction on the proposed lot would result in the destruction of at least four mature oak trees, would create two new lots significantly smaller than almost all lots in the district west of Dupont, and would create lots with a buildable depth of only nineteen feet, resulting in difficulty in obtaining building permits.  These factors constitute a reasonable basis for the city’s denial of the application.  In denying the subdivision application, the city made detailed findings, supported by substantial evidence, pursuant to the relevant ordinance.  We conclude that its action was not arbitrary and capricious, and the district court’s order granting O’Shea summary judgment on this issue must be reversed.


            O’Shea, in a notice of review, challenges the district court’s denial of her claim that the city’s decision violated her due process rights under the federal constitution.  The constitution mandates procedural safeguards when a party is being deprived of a property interest.  See U.S. Const. amend. XIV; Martin v. Itasca County, 448 N.W.2d 368, 370 (Minn. 1989).  Due process requires that deprivation of property be preceded by notice and an opportunity to be heard.  Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S. Ct. 1487, 1493 (1985); Barton Contracting Co. v. City of Afton, 268 N.W.2d 712, 716 (Minn. 1978) (holding that due process rights include notice and a reasonable opportunity to be heard). “This court reviews de novo the procedural due process afforded a party.”  Zellman ex rel. M.Z. v. Indep. Sch. Dist. No. 2758, 594 N.W.2d 216, 220 (Minn. App. 1999) (citation omitted), review denied (Minn. July 28, 1999).

            O’Shea argues that she was denied procedural due process because repeated delays and unlawful denials based on ordinances not yet in effect unfairly extended the city’s decisionmaking process.  The record is clear that O’Shea’s application was considered under the older version of the ordinance in effect at the time of the application.  Thus, this argument lacks merit.  In addition, O’Shea had an opportunity to be heard at two public neighborhood meetings and one public hearing.  Any delays occurred either at her request or within ordinary procedural allowances.  O’Shea’s application was complete on August 19, 1999; the city’s final decision was made on October 25, 1999.  Because O’Shea had reasonable notice of all meetings and hearings and had a reasonable opportunity to be heard, her procedural due process rights were not violated, and we affirm the district court order for summary judgment on this issue.


O’Shea also challenges the district court’s denial of her claim that the city’s decision denied her equal protection of the law under the federal constitution.  The Equal Protection Clause guarantees that “[n]o State shall * * * deny to any person within its jurisdiction the equal protection of the laws.”  U.S. Const. amend. XIV, § 1.  Absent an allegation that an ordinance discriminates on the basis of a suspect classification or fundamental right, zoning ordinances are reviewed under the rational-basis standard.  City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440, 105 S. Ct. 3249, 3254 (1985).  The party challenging the law on these grounds bears the burden of demonstrating beyond a reasonable doubt that the statute violates the constitution.  McGuire v. C & L Rest., Inc., 346 N.W.2d 605, 611 (Minn. 1984).

O’Shea, however, alleges no facts indicating how the city ordinance may violate the Equal Protection Clause.  Therefore, she has failed to carry her burden of showing that the ordinance is unconstitutional.  We decline to reach legal issues on appeal that have not been discussed or supported in the brief.  State, Dep’t of Labor & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997).  The district court’s order for summary judgment on this issue is affirmed.

            Affirmed in part and reversed in part.