This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-206

 

 

Mendota Golf, LLP, petitioner,

Respondent,

 

vs.

 

City of Mendota Heights,

Appellant.

 

Filed September 28, 2004

Affirmed

Robert H. Schumacher, Judge

 

Dakota County District Court

File No. C003009146

 

S. Todd Rapp, S. Todd Rapp, P.A., 15025 Glazier Avenue, Suite 401, Apple Valley, MN 55124 (for respondent)

 

Clifford M. Greene, Greene Espel, P.L.L.P., 200 South Sixth Street, Suite 1200, Minneapolis, MN 55402; and

 

Pierre N. Regnier, Jessica E. Schwie, Jardine, Logan and O'Brien, P.L.L.P., 8519 Eagle Point Boulevard, Suite 100, Lake Elmo, MN 55042; and

 

Daniel S. Schleck, Winthrop & Weinstine, P.A., 225 South Sixth Street, Suite 3500, Minneapolis, MN 55402 (for appellant)

 

Considered and decided by Schumacher, Presiding Judge; Halbrooks, Judge; and Parker, Judge.*

U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

The district court granted respondent Mendota Golf, LLP summary judgment on its petition for mandamus to compel appellant City of Mendota Heights to start the process to amend its comprehensive plan in a manner that would allow development of Mendota Golf's land in a manner consistent with the zoning ordinance. We affirm.

FACTS

When Mendota Golf bought a golf course in Mendota Heights in 1995, the city's zoning ordinance designated the land as residential land (R-1), the city's comprehensive plan designated the land as a golf course (GC), and Minn. Stat.  473.858, subd. 1 (1994) provided that local zoning designations took priority over comprehensive plan designations. Later in 1995, Minn. Stat.  473.858, subd. 1 was amended to state that conflicts between zoning designations and comprehensive-plan designations were to be reconciled. When the city reviewed its comprehensive plan in 2002, it altered the designations of various properties but not Mendota Golf's land.

In 2003, to facilitate a sale of the golf course to a third party who wanted to develop it, Mendota Golf applied to the city to have the city start the process to amend its comprehensive-plan designation of the land from golf course (GC) to low-density residential land (LR). The city denied the application, Mendota Golf petitioned the district court for mandamus to compel the city to start the amendment process, and the district court granted Mendota Golf summary judgment on its petition, issuing mandamus to compel the city to start the process to amend its comprehensive plan.

D E C I S I O N

1. On appeal from summary judgment, appellate courts examine 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); see Minn. R. Civ. P. 56.03 (reciting standard for summary judgments). Mandamus may issue to compel "performance of an act which the law specifically enjoins as a duty" and to compel performance of a discretionary act if the failure to perform that act "[is] so arbitrary and capricious as to constitute a clear abuse of discretion." Minn. Stat.  586.01 (2002); McIntosh v. Davis, 441 N.W.2d 115, 118 (Minn. 1989) (quotation omitted).[1]

After the 1995 amendment of Minn. Stat.  473.858, subd. 1, it stated: "If the comprehensive municipal plan is in conflict with the zoning ordinance, the zoning ordinance shall be brought into conformance with the plan by local government units in conjunction with the review and, if necessary, amendment of its comprehensive plan required under section 473.864, subdivision 2." 1995 Minn. Laws ch. 176, 5. Thus, since 1995, conflicts between zoning designations and designations in a comprehensive plan are to be reconciled by amending the zoning ordinance to conform to the comprehensive plan, or by amending the comprehensive plan during one of the periodic reviews of that plan required by statute. See Minn. Stat.  473.864, subd. 2 (2002) (requiring certain reviews of comprehensive plan); cf. City of Lake Elmo v. Met. Council, 685 N.W.2d 1, 5 (Minn. 2004) (noting review requirements).

Here, it is undisputed that the golf course's zoning-ordinance designation of R-1 would allow the development proposed by the third party. At oral argument in this court, Mendota Golf admitted that the golf course's current comprehensive-plan designation of GC does not allow the proposed development. Thus, in the almost eight years between the reconciliation-requiring 1995 amendment of Minn. Stat.  473.858, subd. 1 and this dispute, and despite the city's intervening 2002 review of its comprehensive plan, neither the comprehensive plan designation for the golf course nor the zoning-ordinance designation for that golf course was altered. The city failed in its statutory duty to reconcile the designations for the golf course contained in the city's comprehensive plan and its zoning ordinance.

The "IMPLEMENTATION" section of the city's comprehensive plan contains a subsection addressing "ORDINANCES." That subsection states: "Mendota Heights Zoning and Subdivision Ordinances will be the primary regulations governing future land use and development decisions." Thus, if the district court directed the city to reconcile the discrepancy between the comprehensive-plan's designation of the golf course and the zoning-ordinance's designation of the golf course by amending the zoning ordinance, it would have used the discrepancy as a basis for compelling amendment of the zoning ordinance from a designation that allows the proposed development to a new designation that does not allow the intended development, despite the fact that this particular comprehensive plan contains a peculiar provision stating that the primary authority for development decisions is the zoning ordinance. In other words, to grant mandamus to compel the city to reconcile the discrepancy by amending the zoning ordinance would have been to allow this comprehensive plan's designation of the golf course to govern development decisions despite the fact that this comprehensive plan states that it is the zoning ordinance that is the primary authority for making development decisions.

Therefore, the district court did not err by directing the city to satisfy its statutory obligation of reconciling the discrepancy between its comprehensive-plan designation of the land and its zoning-ordinance designation of the land by starting the process to amend the comprehensive plan. And the peculiar provision of this comprehensive plan stating that the zoning ordinances are the primary authority governing development decisions addresses the city's arguments that mandamus is an inappropriate remedy because the city has no obligation to amend its comprehensive plan, rendering any amendment of that plan inherently discretionary.

2. The city defends its refusal to start the process to amend its comprehensive plan by referring to its ability to preserve "open spaces." There are at least two problems with this argument. First, because the records of the planning commission's meeting and the city council's deliberations on Mendota Golf's application do not include more than passing references by commission and council members to "open spaces," it is not clear that either the commission or the council exercised any ability either entity may have to consider the preservation of open spaces.

Second, while a golf course may be space that is open, the comprehensive plan uses separate designations for "Golf Course (GC)" and "Open Space (OS)." And despite the fact that various maps in the comprehensive plan used different designations to refer to the golf course, the portions of the comprehensive plan specifically addressing the golf course designated it as GC before the 2002 review and that designation was not changed in the review. Thus, the golf course has not been, and is not currently designated as, the "open space" that the city argues it has the ability to preserve.

To avoid these and related problems, the city argues that under Honn v. City of Coon Rapids, 313 N.W.2d 409, 414-15 (Minn. 1981), a court's review of the reasons for a zoning decision is not limited to the reasons articulated by the municipality but must include any reasonable basis for the decision. But this is an appeal from the district court's mandamus decision, not a decision in a municipal zoning matter. Also, Honn addressed the then-existing municipal procedures that had created problems in judicial review of municipal decisions; it states that unless a municipal body has its reasons for its decision recorded or reduced to writing in more than a conclusory fashion, it runs the "risk of not having its decision sustained." Honn, 313 N.W.2d at 416.

After citing Honn, Swanson v. City of Bloomington, 421 N.W.2d 307 (Minn. 1988) states that, when the municipal procedures are fair and the resulting record is adequate, the "standard of review is whether the municipal body's decision was unreasonable, arbitrary or capricious, with review focused on the legal sufficiency of and factual basis for the reasons given." Id. at 313 (emphasis added). Here, the district court ruled that the municipal proceedings were fair, that determination is not challenged on appeal, and the preservation of "open spaces" is not mentioned in the city council's resolution denying Mendota Golf's application. Thus, it is not clear that Honn requires an "open space" argument to be considered here.

We also reject the city's argument that Arcadia Dev. Corp. v. City of Bloomington, 552 NW.2d 281, 289 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996), supports its argument that review is not limited to the articulated reasons for a decision. Arcadia involved a due-process challenge to the city's zoning ordinance itself and it is in this context that Arcadia states that the "rational basis test merely requires the challenged legislation to be supported by any set of facts either known or which could reasonably be assumed" to exist. Id., at 288-89. The current appeal, however, does not involve a challenge to the comprehensive plan or the zoning ordinance. Therefore, Arcadia is distinguishable, and we decline to speculate about unarticulated possible reasons for the city's decision.

3. The district court cited Chanhassen Estates Residents' Assn v. City of Chanhassen, 342 N.W.2d 335 (Minn. 1984) and PTL, LLC v. Chisago County Bd. of Comm's., 656 N.W.2d 567 (Minn. App. 2003), for the proposition that "[w]hen a municipality designates a specific use as permissible in a particular zoning district, the municipality has exercised its discretion, and conclusively determined thereby that such a permitted use is consistent with public health, safety and general welfare, as well as consonant with the goals of its overall Comprehensive Plan." The city argues that these cases do not apply here because Chanhassen was decided before the 1995 amendment of Minn. Stat.  473.858, subd. 1, and PTL, while decided after the 1995 amendment of Minn. Stat.  473.858, subd. 1, involved land outside the seven-county metropolitan region, which was not subject to the 1995 amendment of Minn. Stat.  473.858, subd. 1.

The core of the district court's ruling was not a reliance on Chanhassen and PTL as such, but the logical inconsistency between (1) the comprehensive plan's statements that its GC designation (the comprehensive plan's current designation of the golf course) and its LR designation (the proposed amended designation of the golf course) both correspond to the zoning ordinance's R-1 designation; and (2) the city's resolution denying Mendota Golf's proposed amendment of the comprehensive plan because the amendment would "have an adverse impact on the health, safety, and general welfare of the citizens of the community and the surrounding land" and "be adverse to the general purpose and intent of the Zoning Ordinance." Here, as the district court observed, under the relevant ordinance "residential uses[] are expressly made a permitted use in R-1 zoning districts."

Thus, but for the comprehensive plan, the city would, under the zoning ordinance, have to allow the development sought here. See Chanhassen, 342 N.W.2d at 340 (stating local officials lack discretion to deny plat applications that satisfy relevant ordinances). The city, however, denied Mendota Golf's application to amend the comprehensive plan to allow a development that would have to be allowed under the zoning ordinance, purportedly because the development would adversely impact "health, safety, and general welfare" and be "adverse" to the "purpose and intent of the Zoning Ordinance." How amending the comprehensive plan to allow development that would have to be allowed under the zoning ordinance could adversely impact health, safety and general welfare, or could be contrary to the intent of the zoning ordinance, is neither clear nor explained.

While we are aware that the city argues that the phrase "Zoning Ordinance," as used in the city's ordinance denying Mendota Golf's request to amend the comprehensive plan should be read broadly to include reference to the comprehensive plan, because that ordinance refers to both the "Comprehensive Plan" and the "Zoning Ordinance," and because the bulk of the parties' dispute involves distinctions between the zoning ordinance and the comprehensive plan, the usage suggested by the city is unlikely and we decline to read the ordinance as proposed by the city. Even if we did so, however, that reading of the city's ordinance would not address the comprehensive plan's statement that it is the zoning ordinance that is to be the primary authority for addressing questions of land development.

Affirmed.



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

[1] The city's brief cites unpublished authority to support aspects of its argument. Unpublished opinions are of limited value in deciding an appeal. See Minn. Stat.  480A.08, subd. 3(c) (2002) (stating "[u]npublished opinions of the court of appeals are not precedential" (emphasis added)); Vlahos v. R & I Constr., Inc., 676 N.W.2d 672, 676 n.3 (Minn. 2004) (stating district court erred "both as a matter of law and as a matter of practice" by relying on an unpublished opinion of the court of appeals, "stress[ing] that unpublished opinions of the court of appeals are not precedential" and noting both that "danger of miscitation [of unpublished opinions] is great because unpublished opinions rarely contain a full recitation of the facts" and that "[u]npublished opinions should not be cited by the district court as binding precedent"); Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800-01 (Minn. App. 1993) (stating dangers of miscitation and unfairness associated with use of unpublished opinions and that while persuasive, "legislature has unequivocally provided that unpublished opinions are not precedential").