This opinion will be unpublished and

may not be cited except as provided by

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







Doris Dahline,







The City of Eagan,



Keystone Communities of Eagan, LLC,



Filed August 24, 2004


Toussaint, Chief Judge


Dakota County District Court

File No. C4-03-9876



Karen E. Marty, Marty Law Firm, LLC, 3601 Minnesota Drive, Suite 800, Bloomington, MN 55435 (for appellant)


John M. Baker, Pamela Lee Vander Wiel, Greene Espel, P.L.L.P., 200 South Sixth Street, Suite 1200, Minneapolis, MN 55402 (for respondent City of Eagan)


Theodore J. Meyer, 2102 U.S. Bank Center, 101 East Fifth Street, St. Paul, MN  55101 (for respondent Keystone Communities)


Considered and decided by Anderson, Presiding Judge; Toussaint, Chief Judge; Peterson, Judge.

U N P U B L I S H E D  O P I N I O N




On appeal from summary judgment in this zoning dispute, appellant neighbor argues that respondent city acted arbitrarily and capriciously when it (a) granted respondent development company a conditional use permit without the findings required by the city ordinance; (b) approved the conditional-use permit where the proposed structure will cause congestion on the street in front of appellant’s house; and (c) approved variances from the city’s minimum parking and set-back requirements.  Because (1) appellant’s only standing issue presented to the city was the congestion on Alder Lane; and (2) the city did not act arbitrarily and capriciously in granting the conditional-use permit, we affirm.




            Appellant Doris Dahline has lived in a single-family home in the Cedar Grove district of the City of Eagan (the City) for over 40 years.  In October of 2002, the City initiated an Alternative Urban Areawide Review (AUAR) “to identify and document potential cumulative environmental impacts and infrastructure needs related to the redevelopment of the Cedar Grove Redevelopment Area,” and “to evaluate the cumulative effects of all anticipated development in the area at once rather than reviewing individual phases of development separately.”  The AUAR includes nine pages of existing and predicted traffic operations and shows that the street system could accommodate the proposed development with recommended improvements, which were incorporated into the realignment plans for the major streets and intersections.  

In preparation for the redevelopment, the City purchased all of the single-family homes except Dahline’s.  Single-family residential housing is no longer a permitted or conditional-use within the Cedar Grove district, and Dahline’s home is now considered a non-conforming use.

            After considering the Advisory Planning Commission’s unanimous recommendation of approval and responding to comments and questions from council members and Dahline, the City adopted an ordinance amendment to accommodate the Cedar Grove design standards and approved rezoning of approximately 96 acres within the Cedar Grove redevelopment area.

            On February 4, 2003, the City entered into an agreement with respondent Keystone Communities of Eagan, LLC (Keystone) to develop land directly north and west of Dahline’s property.  Keystone proposed a four-story, 129 unit senior independent and assisted-living apartment building.  Three months later, Keystone applied to the City for a conditional use permit (CUP) to construct the building and requested variances to the City’s minimum parking and setback requirements.  On July 1, 2003, the City granted the variances and approved the CUP with ten conditions attached.  One of the conditions was that Keystone improve Alder Lane, the street that runs past Dahline’s house to Keystone’s building.

In September of 2003, Dahline served complaints against the City and Keystone, alleging that the City’s grant of the CUP and variances were unreasonable, arbitrary, and capricious.  All three parties filed motions for summary judgment.  The district court granted summary judgment to the City and Keystone.  This appeal follows. 


On appeal from a grant of summary judgment, this court asks whether there are any genuine issues of material fact and whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  The district court shall grant a motion for summary judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citation omitted).  This court views “the evidence in the light most favorable to the party against whom judgment was granted.”  Id. 

Dahline argues that the city acted arbitrarily and capriciously when it approved the CUP and variances from the City’s minimum parking and setback requirements.  An appellate court’s “duty in considering zoning cases is to review the decision of the city council independent of the findings and conclusions of the district court.”  VanLandschoot v. City of Mendota Heights, 336 N.W.2d 503, 508 (Minn. 1983).  An appellate court examines the action of the city to determine whether it was arbitrary or capricious, whether the reasons articulated by the city do not have the “slightest validity or bearing on the general welfare,” or whether the reasons were “legally sufficient and had a factual basis.”  Mohler v. City of St. Louis Park, 643 N.W.2d 623, 630 (Minn. App. 2002) (quotations omitted), review denied (Minn. July 16, 2002).



In support of her proposition that the City acted arbitrarily and capriciously, Dahline raises several issues on appeal for which the district court found she lacked standing.  “[A] summary-judgment motion cannot be defeated by simply ‘presenting additional evidence that was not considered by [the City] when making its decision;’ rather, those proffering the additional evidence must show that [the City] ‘failed in its responsibility . . . either by avoiding an issue or by ignoring evidence about an issue that was addressed.”  City of Bloomington v. City of Burnsville, 666 N.W.2d 414, 419 (Minn. App. 2003) (quoting White v. Minn. Dep’t of Natural Res., 567 N.W.2d 724, 735 (Minn. App. 1997), review denied (Minn. Oct. 31, 1997)).  Here, the record shows that the only issue Dahline raised to the City was the issue of congestion on Alder Lane.  Because Dahline did not raise the issue of parking or setback requirements, she does not have standing to raise those issues on appeal.  Thus, we address only the district court’s approval of the CUP. 


Dahline argues that the CUP is presumed arbitrary because the City failed to make contemporaneous findings, citing R.A. Putnam v. City of Mendota Heights, 510 N.W.2d 264 (Minn. App. 1994), review denied (Minn. March 15, 1994).  In Putnam, however, the zoning request was deniedId. at 266-67.  “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.  Therefore, express written findings are unnecessary.  Haen v. Renville County Bd. of Comm’rs, 495 N.W.2d 466, 471 (Minn. App. 1993) (emphasis added) (citation omitted), review denied (Minn. March 30, 1993).  The grant of a CUP is not arbitrary where a board considers all proffered evidence, gave both sides an opportunity to be heard, and the evidence is not so significant and one-sided as to render the approval arbitrary.  Schwardt v. County of Watonwan, 656 N.W.2d 383, 389 n.4 (stating that this court gives more deference to CUP approval than it does to CUP denials). 

            Here the record shows that the council conducted the AUAR, considered reports of the planning commission, heard statements of a Keystone representative, and that Dahline was present at meetings and corresponded extensively with the city council.  The district court thus correctly found that the city was not required to make contemporaneous findings.   

Conditional Use Permit (CUP)

To show thatthe city acted unreasonably and abused its discretion in approving the CUP, Dahline must establish that Keystone’s proposed building did not meet one of the standards set forth in the City’s Ordinance.  Schwardt 656 N.W.2d at 387.  Dahline argues that the Keystone project will cause congestion on Alder Lane but does not offer any evidence in support of this.  The record shows that the city considered the AUAR, which is an extensive study of traffic patterns of the entire Cedar Grove district, and conditioned the CUP on the improvement of Alder Lane to City standards.  Thus, the district court did not err in finding that the city acted in good faith and carefully considered all the evidence within the broad discretion accorded it by statutes and the relevant ordinances before granting the CUP to Keystone. 


Respondent Keystone raises the issue of laches, without first filing a notice of review.  Without a notice of review, this court may not address this issue.  Minn. R. Civ. App. P. 106 (“A respondent may obtain review of a judgment or order entered in the same action which may adversely affect respondent by filing a notice of review with the clerk of the appellate courts.”).