This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Robert Kimmel,


Township of Ravenna,


Filed December 13, 2005


Minge, Judge


Dakota County District Court

File No. C6-04-9243



George L. May, Terence G. O’Brien, Jr., May & O’Brien, LLP, 204 Sibley Street, Suite 202, Hastings, MN 55033 (for appellant)


Paul D. Reuvers, Pamela Whitmore, Iverson Reuvers, 9321 Ensign Avenue South, Bloomington, MN 55438 (for respondent)


            Considered and decided by Minge, Presiding Judge; Kalitowski, Judge; and Shumaker, Judge.

U N P U B L I S H E D  O P I N I O N


MINGE, Judge

Robert Kimmel appeals from the summary judgment disposal of his claim that the Township of Ravenna (the township) arbitrarily denied his request for a conditional use permit and failed to maintain a proper record of the proceedings.  Kimmel also claims that the district court abused its discretion by considering the township’s summary judgment motion before he had adequate opportunity to respond and without allowing discovery.  Because we conclude the township established an adequate record, had a rational basis for granting special use permits for accessory buildings, followed its policy in denying a permit to Kimmel, adequately explained its decision and did not wrongfully destroy records, and because we conclude the district court did not abuse its discretion in acting on the township’s motion for summary judgment, we affirm.



            In July 2003, Kimmel purchased an 11.27-acre tract of land located in the Township of Ravenna.  The parcel was zoned RR-1, Rural Residential District and contained three structures: a single-family house, a 4,050-square-foot pole barn, and a silo.  Prior to his purchase, the parcel had been the building site for a farm.  Kimmel uses the property as his personal residence. 

            In January 2004, Kimmel approached the township about constructing a 2,880-square-foot accessory structure on his 11.27-acre parcel.  According to Ravenna Zoning Ordinance § 201.3, one accessory structure up to 3,600 square feet is permitted on parcels larger than 10 acres; however, a conditional use permit is required for a structure that exceeds that size.  Kimmel applied for a permit.  The board determined that the existing 4,050-square-foot pole barn was a nonconforming accessory structure and denied the application.

            Kimmel commenced a declaratory judgment action.  The township moved for summary judgment and Kimmel filed his discovery requests.  The township moved for a protective order in lieu of responding to Kimmel’s discovery requests.  Kimmel, in turn, moved to compel discovery and asked for a continuance to respond to the summary judgment motion.   After a hearing, the district court granted summary judgment for the township and implicitly denied Kimmel’s motions for continuance and to compel discovery.  Kimmel appeals.


            On an appeal from summary judgment, this court must determine 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).  Moreover, the court will view the evidence in the light most favorable to the nonmoving party.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  

[T]here is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.


DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).


            The first issue is whether the township’s record was adequate.  On appeal, this court will review the record made before the local zoning authority, without according any special deference to the district court’s review.  Swanson v. City of Bloomington, 421 N.W.2d 307, 311 (Minn. 1988).  “Where the municipal proceeding was fair and the record clear and complete, review should be on the record.”  Id. at 312-13.  However, “where a city has failed to make a complete and adequate record of its proceedings in zoning matters [the court may] require that city to prove the basis of its decision . . . .”  Id. at 312.  The parties may then expand the record through discovery.  Honn v. City of Coon Rapids, 313 N.W.2d 409, 415-16 (Minn. 1981).

Kimmel contends that the record is only clear and complete if it contains a verbatim transcript of the zoning proceedings.  Whether the record is clear and complete is a determination the court makes by looking at the entire record.  Billy Graham Evangelistic Ass’n v. City of Minneapolis, 667 N.W.2d 117, 123 (Minn. 2003).  Ideally, the record would include statements of experts, contemporaneous written findings by the municipality, and verbatim transcripts of hearings.  Swanson, 421 N.W.2d at 313-14.  However, no Minnesota case has expressly held that a verbatim transcript is a legal essentialSee, e.g., SuperAmerica Group, Inc. v. City of Little Canada, 539 N.W.2d 264, 266 (Minn. App. 1995) (finding a clear and complete record where the public meeting was recorded and summarized in prepared minutes), review denied (Minn. Jan. 5, 1996).  Compare Hoskin v. City of Eagan, 632 N.W.2d 256, 260-61 (Minn. App. 2001) (upholding denial of a permit when both the hearing transcript and summarized minutes demonstrated a rational basis for denial), with Sunrise Lake Ass’n, Inc. v. Chisago County Bd. of Comm’rs, 633 N.W.2d 59, 61 (Minn. App. 2001) (holding that the board’s actions were deficient where the minutes “merely describe the county’s action as to accept the report and recommendation of the Planning Commission”).  If the record is inadequate, the district court may allow testimony to amplify the record.  See Honn, 313 N.W.2d at 415-16.  However, there are limits on how far the courts should go in allowing local units of government to supplement the record.  Id.; In re Livingood, 594 N.W.2d 889 (Minn. 1999). 

            In the present case, the township recorded each of the relevant hearings and prepared summarized minutes from those recordings.  The minutes set forth the reasons for denial pursuant to the relevant ordinance.  The record also contains numerous e-mail communications between Kimmel and the township officials discussing permit requirements and applicable policies, as well as a formal letter from the township to Kimmel detailing the reasons for denial.  This letter is consistent with the e-mail communications, the minutes, and the reasoning adopted by the town board when it finally denied the permit.  The administrative record was adequate because it contained the communications between the parties, the relevant municipal ordinances and the township’s decision.  Thus, the district court did not err in considering summary judgment on the record.

            We note that the record in this action indicates that the township erased the original tape recording of the township proceeding.  Kimmel argues that erasing the tapes of the hearings amounted to spoliation of material evidence and that the district court abused its discretion by failing to impose sanctions.  The district court has broad discretion to determine what constitutes spoliation and whether sanctions for spoliation are appropriate.  Patten v. Newmar Corp., 538 N.W.2d 116, 119 (Minn. 1995).  Because we find that the record indicates that the township routinely erased the recordings of its proceedings and that it maintained a sufficient record of the administrative proceedings through the summarized minutes prepared from the recordings, there is no spoliation and, therefore, the district did not abuse its discretion in declining to impose sanctions.[1]  This case does not present the egregious situation where a local unit of government misrepresented its handling of the record.  See Livingood, 594 N.W.2d at 889.


            The second issue is whether the township arbitrarily denied Kimmel’s application for a conditional use permit.  Kimmel asserts that the denial was arbitrary and capricious because it was based on an unwritten, completely discretionary, township policy.

            Municipal decisions denying conditional use permits are quasi-judicial actions.  Livingood, 594 N.W.2d at 893 n.2.  Such decisions are given significant deference by reviewing courts, Billy Graham Ass’n, 667 N.W.2d at 127, and will be overturned on appeal only where the city’s decision lacks a rational, reasonable basis, SuperAmerica Group,539 N.W.2d at 266; Swanson, 421 N.W.2d at 311.  “[A] city’s denial of a land use request is not arbitrary when at least one of the reasons given for the denial satisfies the rational basis test.”  Trisko v. City of Waite Park, 566 N.W.2d 349, 352 (Minn. App. 1997), review denied (Minn. Sept. 25, 1997).

Unlike the deferential standard of review for land use decisions, this court will review a city’s interpretation of its own ordinance de novo.  Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn. 1980).  Courts strive to construe a term by its plain and ordinary meaning, Nadeau v. Austin Mut. Ins. Co., 350 N.W.2d 368, 373 (Minn. 1984), and ordinances are construed in favor of the landowner, Chanhassen Estates Residents Ass’n v. City of Chanhassen, 342 N.W.2d 335, 340 (Minn. 1984).  Moreover, when an ordinance confers discretion, “a city council may deny a conditional use permit only for reasons relating to the public health, safety, and general welfare or for incompatibility with a city’s land use plan.”  SuperAmerica Group, 539 N.W.2d at 267 (emphasis added); see C.R. Invs., Inc. v. Vill. of Shoreview, 304 N.W.2d 320, 324 (Minn. 1981).  Purpose statements in land use plans, indicating that the plan seeks to protect the unique scenic quality of a municipality or its rural character, are sufficient bases for permit denial.  Hubbard Broad., Inc. v. City of Afton, 323 N.W.2d 757, 763 (Minn. 1982); Barton Contracting Co. v. City of Afton, 268 N.W.2d 712, 717-18 (Minn. 1978).

This court must determine whether the township made a reasonable decision in light of the language in the ordinance.  Providing a contemporaneous reasoning for a decision contributes to its reasonableness.  Hurrle v. County of Sherburne ex rel. Bd. of Comm’rs., 594 N.W.2d 246, 249 (Minn. App. 1999).  The findings need not be formal, but the city must, “at a minimum, have the reasons for its decision recorded or reduced to writing and in more than just a conclusory fashion.”  Honn, 313 N.W.2d at 416.  In fact, “the absence of detailed factual findings is not fatal if substantial evidence in the record supports the board’s application of the ordinance.”  Graham v. Itasca County Planning Comm’n, 601 N.W.2d 461, 467 (Minn. App. 1999).

The landowner bears the burden of demonstrating that the decision of the municipality, as explained in its contemporaneous findings, was arbitrary and capricious.  See Billy Graham Ass’n, 667 N.W.2d at 123.  A permit denial is arbitrary and capricious when “the requested use is compatible with the basic use authorized within the particular zone,” Zylka v. City of Crystal, 283 Minn. 192, 196, 167 N.W.2d 45, 49 (1969), or when the denied use bears a reasonable relationship to the purposes of the ordinances, see Clear Channel Outdoor Adver., Inc. v. City of St. Paul, 675 N.W.2d 343, 346 (Minn. App. 2004), review denied (Minn. May 18, 2004). 

            Here, the township’s ordinances place size limitations on accessory structures in relation to parcel acreage.  On any lot, an accessory structure up to 900 square feet is allowed.  See Ravenna Zoning Ordinance § 201.3 (1999).  An additional 300 square feet of accessory structure size is allowed for each additional acre of parcel size up to 3,600 square feet for a parcel 10 acres or larger.  Id.  Larger accessory structures can be placed on larger parcels if the town board grants a conditional use permit.  Id.  Going beyond the situations covered by the ordinance, by unwritten policy, the township grants conditional use permits for an additional 300 square feet in accessory-building size for each additional acre of parcel size.  Because the town board classified Kimmel’s 4,050-square-foot pole barn as an accessory structure, his property was already over the presumptive maximum of 3,900 square feet for an 11-acre property when he submitted his permit application for the 2,880-square-foot building.

Kimmel presents two challenges to the interpretation of the ordinance.  First, he argues that his property was arbitrarily classified under the ordinance.  While Kimmel concedes that his permit request was for an accessory structure,[2] he argues that the permit should be issued as a matter of law because he only wishes to build a 2,880-square-foot structure on 11 acres, presumptively within the ordinance.  This argument is based on classifying the pole barn as an existing, permitted farm building,[3] not an accessory structure.  His property was the building site that was part of a larger working farm prior to his purchase.  Although Kimmel indicated that he may use the pole barn for horses, he currently uses the property as his personal residence and does not operate a farm.  We cannot say that the accessory designation for Kimmel’s pole barn lacks a rational basis.  Under the applicable definitions, Kimmel’s pole barn was reasonably classified as a nonconforming accessory use and not a farm building.  Also, as previously stated, in the present case, the township not only gave Kimmel the reason for denying the permit at the time of the decision, but gave him the same reason before and after its decision.  The township’s consistency lessens concerns that the record embodies ad hoc justifications. 

            Second, Kimmel challenges the township’s exercise of discretion in denying the permit for the new structure as arbitrary and capricious.  According to section 201.3 of its zoning ordinance, the township has the authority to grant permits.  In an e-mail to appellant on January 26, 2004, Ron Wasmund, the township’s building official, summarized the township’s informal, unwritten policy as follows: “The board has the implied and expressed authority to approve building sizes on larger parcels . . . . The policy is as I have earlier provided, 3600sf plus 300 square feet extra for every full acre over 10 acres.”  As previously noted, the township further explained this policy at both board meetings, and in the letter detailing the reasons for denying Kimmel’s permit.  The township claims that it developed this policy to be fair and consistent.

One of the purposes of the township’s land use plan is to preserve the rural quality the township.  Ravenna Zoning Ordinances Adoption Summary (1999).  The township implied that the construction of larger, nonagricultural buildings compromises this rural quality.  Because the limit on accessory buildings furthers the purposes stated in the land use plan, the township has properly exercised its discretion.  Since the denial comports with the plain meaning of the ordinance, and supports legitimate land use policies, the denial of Kimmel’s permit has a rational basis.  

Based on the record and the foregoing analysis, we conclude that the district court did not err in determining that the township’s denial of the conditional use permit was not arbitrary and capricious.



            The final issue is whether the district court erred in hearing the township’s summary judgment motion.

A.        Timing Challenge

Kimmel contends that the district court abused its discretion in considering the township’s summary judgment motion because it was premature and he was denied a fair opportunity to respond.  The timing of summary judgment motions is governed by Minn. R. Civ. P. 56.03 and Minn. R. Gen. Pract. 115.03(a).  Minn. R. Civ. P. 56.03 states that a summary judgment motion must comply with Minn. R. Gen. Pract. 115.03, but cannot in any event be served less than 10 days before the hearing.  Minn. R. Gen. Pract. 115.03(a) states that no dispositive motion shall be heard unless properly noticed and served at least 28 days prior to the scheduled hearing.  “[T]he stated time for the notice in Rule 56.03 is mandatory, absent a clear waiver by the adversary.”  Wikert v. N. Sands & Gravel, Inc., 402 N.W.2d 178, 182 (Minn. App. 1987), review denied (Minn. May 18, 1987).  But, an untimely summary judgment motion may be heard and granted when the opposing party does not suffer prejudice.  Benigni v. County of St. Louis, 585 N.W.2d 51, 53 (Minn. 1998). 

The 28-day time limit set forth in Minn. R. Gen. Pract. 115.03 was added to the rules in 1997.  The Advisory Committee comment discusses the disparity in time limits as follows:

The time limits for dispositive motions are admittedly longer than the 10-day requirement set forth in Minn. R. Civ. P. 56.03.  The Task Force is of the view that these requirements are not necessarily inconsistent because the rules serve two different purposes.  The civil procedure rule establishes a minimum notice period to the adversary, while this provision in the general rules of practice sets forth a standard to facilitate the court’s consideration of the motions.  The time requirements of this rule may be readily modified by the court, while the minimum notice requirements of Minn. R. Civ. P. 56.03 is mandatory unless waived by the parties themselves.


Minn. R. Gen. Pract. 115 1997 advisory comm. cmt.  Under Minn. R. Gen. Pract. 115.07, the district court may modify the time limits “if the interests of justice” require.

            When a summary judgment motion raises new arguments, catches the other side off-guard, or denies the opposing party time to prepare, there is prejudice and the untimely motion will not be considered.  Benigni, 585 N.W.2d at 53; see also Hebrink v. Farm Bureau Life Ins. Co., 664 N.W.2d 414, 418-19 (Minn. App. 2003) (holding that a motion received seven days before trial, miscaptioned as a motion in limine but operating as a summary judgment motion, created prejudice and timing requirements were not waived). 

            In this case, the summary judgment motion was served by mail on Kimmel on August 27, 2004, and stated that it would be heard on October 28, 2004.  On October 1, 2004, Kimmel served by mail and facsimile a motion to compel discovery with a hearing date of October 18.  The township amended its motion for a protective order to also reflect a hearing set for October 18.  On October 4, Kimmel sought to delay any consideration of summary judgment until after discovery was complete.  On October 5, the township sought to move consideration of summary judgment to October 18, and to relax the time limits for consideration of summary judgment so all motions could be heard at one time.  The court, in fact, heard all matters on October 18.  There is no showing that Kimmel did not have adequate information or time to craft a response opposing summary judgment.  The rules grant the district court discretion to modify the time limits.  Under these circumstances, it was not an abuse of discretion for the district court to consider the township’s summary judgment motion.

B.        Inadequate Discovery

Kimmel also contends that summary judgment was premature in light of limited discovery.  Specifically, Kimmel challenges the district court’s denial of his motion for a continuance and motion to compel discovery while granting the township’s summary judgment motion. 

Denial of a motion to continue and compel discovery is reviewed for abuse of discretion.  Alliance for Metro. Stability v. Metro. Council, 671 N.W.2d 905, 919 (Minn. App. 2003).  Under such a deferential standard of review, the court will overturn a discovery decision if, for example, discovery would result in an intrusive invasion of privacy.  Shetka v. Kueppers, Kueppers, Von Feldt & Salmen, 454 N.W.2d 916, 921 (Minn. 1990).  Continuances should be liberally granted, particularly if the party seeking the continuance has had insufficient time to complete discovery.  Alliance for Metro. Stability, 671 N.W.2d at 919.  Moreover, when the nonmoving party has been allowed only minimal discovery and all the information is in the possession of the opposing party, summary judgment may be premature.   See Bixler by Bixler v. J.C. Penney Co., 376 N.W.2d 209, 217 (Minn. 1985) (providing for additional discovery where parties had already uncovered strong evidence of wrongdoing, and more discovery would more fully define the scope of liability); U.S. Bank Nat’l Ass’n v. Angeion Corp., 615 N.W.2d 425, 433-34 (Minn. App. 2000) (finding that summary judgment was premature in complex corporate transaction case where insufficient discovery had been completed), review denied (Minn. Oct. 25, 2000).

The district court must address two questions before granting the motion to continue or compel: (1) whether the plaintiff has been diligent in obtaining or seeking discovery; and (2) whether the plaintiff is seeking discovery in the good faith belief that material facts will be uncovered or merely engaging in a fishing expedition.  Rice v. Perl, 320 N.W.2d 407, 412 (Minn. 1982); Hasan v. McDonald’s Corp., 377 N.W.2d 472, 475 (Minn. App. 1985); see also Alliance for Metro. Stability, 671 N.W.2d at 919 (holding that inserting a one-sentence request for discovery into memorandum in opposition to summary judgment did not satisfy the first inquiry); Kissner v. Norton, 412 N.W.2d 354, 357 (Minn. App. 1987) (affirming denial of appellant’s motion to compel discovery when appellant had not been diligent in replying to respondent’s discovery requests).

Even if the party exhibited diligence in seeking discovery, if the discovery is not reasonably calculated to uncover material facts, the motion to continue should be denied.  See Rice, 320 N.W.2d at 412 (“[t]he court should be quite strict in refusing continuances where the party merely expresses a hope or a desire to engage in a fishing expedition either by discovery or at the time of trial.”) (quotations omitted).  Finally, summary judgment is not premature where discovery would neither aid the district court nor change the result of the summary judgment motion.  McCormick v. Custom Pools, Inc., 376 N.W.2d 471, 477 (Minn. App. 1985), review denied (Minn. Dec. 30, 1985).

Kimmel’s challenge fails for two reasons.  First, he had adequate information to defend a summary judgment motion.  The township disclosed the bulk of the information sought by Kimmel in his requested discovery when it submitted the administrative record.  Specifically, the administrative record contains all communications between Kimmel and town officials, minutes from every meeting where township officials considered Kimmel’s application, and copies of the relevant ordinances.  Given the amount of information disclosed as part of the administrative record, we cannot say that the district court abused its discretion in denying the motion for continuance and motion to compel.

Second, Kimmel fails to show how additional discovery would yield material facts.  See Yang v. County of Carver, 660 N.W.2d 828, 832 (Minn. App. 2003) (holding the party seeking review of the municipal decision bears the burden of persuasion that the reasons for denial are either without factual support or are legally insufficient).  Kimmel asserts that discovery is necessary to determine whether the township treated his application differently than those of other landowners applying for conditional use permits.  “Disparate treatment of two similarly-situated property owners may be an indication that the local government is acting unreasonably or arbitrarily.”  Billy Graham Ass’n, 667 N.W.2d at 126.

Land-use-permit applications separated in time are not similarly situated.  Stotts v. Wright County, 478 N.W.2d 802, 806 (Minn. App. 1991), review denied (Minn. Feb. 11, 1992); In re Johnson, 404 N.W.2d 298, 301 (Minn. App. 1987) (overruled on other grounds by Myron v. City of Plymouth, 562 N.W.2d 21 (Minn. App. 1997)).  Only when applications are considered simultaneously, or when one permit is granted when another is being considered, are permit applicants deemed to be similarly situated.  Nw. Coll. v. City of Arden Hills, 281 N.W.2d 865, 869 (Minn. 1979).

While Kimmel did request discovery relating to other properties and related permit applications, he has not demonstrated why such discovery is relevant, beyond making bald assertions of suspected impropriety.  In fact, the affidavit of the township’s counsel set forth information that in the past two years the township considered only one other application under the same ordinances.  Information regarding the township’s action on that application indicates that Kimmel’s property was not treated inconsistently. There is no threshold showing that the equal protection analysis is relevant.

Because Kimmel failed to demonstrate that the township’s denial of his conditional use permit was arbitrary and capricious, because the administrative record is
clear and complete, and because the district court did not abuse its discretion by granting summary judgment, we affirm.


[1] Kimmel also claims that the township’s erasure of the tapes violated the record-retention requirements of Minnesota law, and that such violation requires a sanction.  Minnesota law requires that a town clerk keep a true record of all local proceedings, and record and keep minutes of meetings.  Minn. Stat. § 367.11 (2004).  Because the township complied with these requirements through the preparation of summarized minutes, we decline to further consider the type of sanction appropriate for a hypothetical violation.

[2] Ravenna Zoning Ordinance § 040 defines an accessory structure as “[a] use or structure, or a portion of a structure subordinate to that is not intended for habitation, and serves the principal use structure on the same lot.”

[3] Ravenna Zoning Ordinance § 040 defines a farm building as “[a]ll buildings other than dwellings which are incidental to the farming operation, including but not limited to barns, granaries, silos, farm implement storage buildings and milk houses.”