This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Township of Ravenna,
Dakota County District Court
File No. C6-04-9243
George L. May, Terence G. O’Brien, Jr., May & O’Brien,
Paul D. Reuvers, Pamela Whitmore, Iverson Reuvers,
Considered and decided by Minge, Presiding Judge; Kalitowski, Judge; and Shumaker, Judge.
appeals from the summary judgment disposal of his claim that the
July 2003, Kimmel purchased an 11.27-acre tract of land located in the
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.
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,
[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.
Inc. v. Russ, 566 N.W.2d 60, 71 (
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
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
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.
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 (
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.
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
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 (
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
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
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
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, 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, 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.
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
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
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.
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 (
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.
fails to show how additional discovery would yield material facts. See Yang
applications separated in time are not similarly situated. Stotts
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.
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.
Kimmel also claims that the township’s erasure of the tapes violated the
record-retention requirements of
 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.”
 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.”