This opinion will be unpublished and

may not be cited except as provided by

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







McNulty Construction Company,





The City of Deephaven,




Filed January 20, 2004

Reversed and remanded
Crippen, Judge


Hennepin County District Court

File No. CT-02-14456



Joseph A. Nilan, Siira B. Gunderson, Gregerson, Rosow, Johnson & Nilan, Ltd., 1600 Park Building, 650 Third Avenue South, Minneapolis, MN 55402-4337 (for appellant)


George C. Hoff, Kimberly B. Kozar, Hoff, Barry & Kuderer, P.A., 160 Flagship Corporate Center, 775 Prairie Center Drive, Eden Prairie, MN 55344-7319 (for respondent)


            Considered and decided by Randall, Presiding Judge, Shumaker, Judge, and Crippen, Judge.


U N P U B L I S H E D   O P I N I O N


            Appellant McNulty Construction Company, having been denied a replatting of its property and suffered a summary judgment that the denial was for good cause, contends that respondent City of Deephaven arbitrarily denied its application without lawful reasons.  The court acknowledged and tacitly denied appellant’s cross-motion for summary judgment.  Because the dispute of the parties deals with fact issues about which respondent city made no adequate findings, we reverse and remand for municipal reconsideration of the subdivision application.


            Appellant owns a large outlot, legally described as Outlot A, McNulty Manor, and wishes to subdivide it in order to permit construction of a residential home on one buildable lot, while maintaining an outlot on the remainder of the property.  Appellant filed an application with the Deephaven Planning Commission to subdivide the lot.  A public hearing was held and the planning commission prepared a staff report recommending that the city council deny the proposed subdivision.  The city council also held public hearings.  Proceedings before the city council indicated municipal concerns as to the slope of the land that was to be improved, and the length and width of the driveway and its safety for emergency vehicles.

            The city council’s denial of appellant’s subdivision request was premised on two findings.  First, the council concluded that “[t]he proposed buildable lot contains significant amounts of severe slopes” that implicate the city’s zoning ordinance and its comprehensive plan.  The resolution cited a planning commission conclusion that “the existing grade of the property does not lend itself to development.”  Second, the city council noted that it was significant that the driveway access was located over an easement of adjoining property and not over the proposed buildable lot itself.  Related to this ground, the city council cited the planning commission suggestion that “use of a driveway easement across a neighboring property [is] an inadequate means of access.”

            As to the slope topic, the trial court concluded that the lot slope problem was positively proven because of evidence demonstrating the “steep slope of the building pad.”  As to the driveway, the court observed that the city’s concern about the driveway was positively supported, it being evident that the city “did not believe the proposed driveway would provide satisfactory access to emergency vehicles because the proposal dictated a long and narrow driveway surrounded by slopes that would be difficult for a lengthy vehicle such as a fire truck to negotiate.”

            Appellant points out that although the city has a lawful subdivision regulation requiring respect to the city’s comprehensive plan on slopes, the regulation relates only to streets and not the building pad itself; appellant asserts that there is no evidence that the driveway construction offends slope-use restrictions.  Appellant also claims that there is inadequate evidence that the driveway is unsafe for emergency vehicles.


            The parties contend that there are no genuine issues of material fact and that the case on appeal merely requires review of the trial court’s application of law.  The standard of review for all zoning matters is the same, namely, whether the zoning authority’s action was reasonable, not arbitrary or capricious.  Honn v. City of Coon Rapids, 313 N.W.2d 409, 416-17 (Minn. 1981).  As the reviewing court, this court undertakes an independent examination of the issues in a zoning case, without giving special deference to the same review conducted by the trial court.  Id. at 415.

1.  Slope Requirements

Under the municipal planning and zoning statutes, municipalities may adopt regulations governing the development of subdivisions.  Minn. Stat. § 462.358, subd. 1 (2002).  These regulations may require that subdivisions be consistent with a city’s comprehensive plan.  Minn. Stat. § 462.358, subd. 2a (2002).  Here, respondent’s subdivision regulations incorporate its comprehensive plan but, as appellant alleges, this incorporation is solely with respect to streets.  Deephaven, Minn., Subdivision Regulation § 1200.10, subd. 1 (1973); Deephaven, Minn., Comprehensive Plan ¶ 7 (Dec. 20, 1999).  The trial court’s analysis of the issue, which deals only with evidence as to slopes and the building pad, does not address the issue presented by respondent’s regulation, prompting us to reverse the court’s summary judgment for respondent.  More importantly, respondent’s findings of fact similarly address severe slopes on the buildable lot and say nothing about the extent to which driveway construction interferes with these slopes.

There is conflicting evidence on this issue, contradicting the views of the parties that there are no material questions of fact in the case.  Howell Owens, a neighboring property owner, provided a contour map showing slopes ranging from approximately 30% to 45% between elevation lines 940 to 960.  Contour maps also show that the proposed driveway is located, in part, within the elevation lines of 940 to 960.   Roger Anderson, an engineer and President of Anderson Engineering of Minnesota, LLC, submitted evidence that the driveway grades would be to the normal range, less than 10%.  It cannot be determined from the record whether these road grades are in reference to movement along the course of the driveway or to the question of whether the driveway construction interferes with slopes on the land from one proposed side to the other.

In sum, the parties are debating a factual issue that was within the scope of issues surfacing in the municipal zoning proceedings, but that was not appropriately addressed in findings by respondent.  Compare White Bear Rod and Gun Club v. City of Hugo, 388 N.W.2d 739, 742 (Minn. 1986) (concluding city council’s denial decision in zoning matter lacked specific findings or explanation necessary to facilitate judicial review), with Swanson v. City of Bloomington, 421 N.W.2d 307, 314 (Minn. 1988) (finding subdivision request properly denied; city council made specific findings under zoning ordinance).  The record is not sufficiently developed for appellate resolution of the fact issues.  Because the municipality did not make findings on the issue, we reverse the trial court’s tacit denial of appellant’s summary judgment motion with a remand to respondent for further proceedings.  Given that disputed facts exist, both parties are free to offer further evidence to the municipality as to whether the driveway actually offends city subdivision regulation that protects natural slopes. 

2.  Emergency Equipment

            Contrary to observations of the parties, this issue also involves a disputed fact question.  Neighbors and city council members expressed personal knowledge and hearsay evidence on the danger that the proposed driveway posed for emergency vehicles, and Roger Anderson testified that the building plan had sufficient access for emergency vehicles and met the appropriate standards of driveway width for fire trucks.  The issue was well within the scope of issues that were before respondent when its city council considered the case.

            Because the trial court did not determine the rationality of the driveway safety concerns but merely recited that the city “did not believe” that the access would be adequate, we reverse its summary judgment for respondent.  Again, it is critically significant that the municipal findings on the issue entirely ignore the issue of safety and contain only a declaration that the driveway is not located on the frontage of the property itself.[1]  Because respondent has not addressed the dispute of the parties as to safety, the issue requires further municipal attention.  Here, too, the parties should be free to offer additional evidence that permits respondent to make factual findings on the safety issue.

            We reverse the trial court’s decisions granting summary judgment to respondent and thereby denying summary judgment to appellant.  Consistent with this opinion, the summary judgment for appellant reverses the denial of its replatting application but without an order approving the replatting and with our remand for municipal determination of critical issues of fact.  To prevent unfairness to appellant, respondent must confine its inquiry on remand to the two issues upon which it now rests its case, the road slope and road safety matters addressed in this opinion.  See Earthburners, Inc., v. County of Carlton, 513 N.W.2d 460, 463 (Minn. 1994) (limiting issues on remand in which government entity may support its prior decision). 

Reversed and remanded.


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

[1] The basis for concern in regard to the use of an easement for driveway access is not documented in the record before the trial court or on appeal.  The parties have thereby abandoned this issue.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding this court must generally consider only those matters argued in the court below); Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (holding issues not briefed on appeal are waived).