This opinion will be unpublished and

may not be cited except as provided by

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






McNulty Construction Company,





The City of Deephaven,



Filed June 27, 2006


Shumaker, 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 (for appellant)


George S. Hoff, Kimberly B. Kozar, Amanda K. Morken, Justin Templin, Hoff, Barry & Kuderer, P.A., 160 Flagship Corporate Center, 775 Prairie Center Drive, Eden Prairie, MN 55344 (for respondent)


            Considered and decided by Shumaker, Presiding Judge; Wright, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant McNulty Construction Company challenges the City of Deephaven’s denial of a permit to subdivide land that McNulty owns.  The district court granted summary judgment to the city, and we affirm.


            In May 2002, appellant McNulty Construction applied for a permit to subdivide a lot it owns in the City of Deephaven.  McNulty’s original application proposed a 12-foot-wide driveway on an existing 20-foot easement.  The city’s planning commission recommended denial of the request.  After public hearings, the city’s council denied McNulty’s request, citing concerns that the request altered slopes in excess of 30% in violation of a city ordinance and had inadequate access for emergency purposes.  McNulty brought an action for declaratory judgment, and the district court granted summary judgment to the city.  McNulty appealed.

On appeal, we determined that the council did not make appropriate findings regarding the slope and access issues.  McNulty Constr. Co. v. City of Deephaven, No. A03-0889, 2004 WL 78046 (Minn. App. Jan. 20, 2004).  Regarding the issue of slope, we stated that “[i]t 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.”  Id. at *2.  We remanded for a factual determination of this issue, instructing that the parties “are free to offer further evidence . . . as to whether the driveway actually offends city subdivision regulation that protects natural slopes.”  Id.  We also determined that the council’s findings regarding access “entirely ignore the issue of safety and contain only a declaration that the driveway is not located on the frontage of the property itself . . . .  Here, too, the parties should be free to offer additional evidence that permits [the city] to make factual findings on the safety issue.”  Id. at *3.  To prevent unfairness to McNulty, we instructed the city to “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.”

            On remand, the council held a public hearing in May 2004.  At the beginning of the hearing, the city’s attorney announced that, according to the remand instructions, the council was “to determine two narrow issues of fact”: (1) whether the construction of the proposed driveway offends the city subdivision regulation that protects natural slopes, and (2) whether the proposed access for the subdivided lot lacks satisfactory access for safety purposes.  McNulty and the city’s attorney disagreed about whether the evidence McNulty sought to introduce was within the scope of our remand.  McNulty’s attorney stated that “we want to make the entire presentation to [the council], and [the city’s attorney] and I have understood that [the city’s attorney] is objecting to things that are outside the scope of what she defines at the hearing.”  The city’s attorney advised the council that

[t]o the extent that modifications to the plan are being proposed, you are reviewing the application that was submitted and that was before the Court of Appeals.  Any proposed modifications . . . I think it would be appropriate that this application then be withdrawn and resubmitted.  They have refused to do that.  Instead, [McNulty] want[s] to present you with that information tonight.  It is not within the scope of the issues to be reviewed, it is not relevant, and shouldn’t be considered in making your decision.


The city’s attorney also advised the council that McNulty’s introduction of evidence of other plat approvals by the city was “wholly irrelevant to the issues before [the council].”  Lastly, the city’s attorney recommended that the council “let [McNulty] go through his documentation, but that you limit your analysis and your decision based on the application that was previously submitted.” 

The council then heard testimony from McNulty’s owner, its attorney, and its three expert witnesses—a civil engineer, a community planner, and a traffic engineer.  McNulty also presented documentary evidence that included its original plan and proposed modifications, expert reports, analysis of the length and width of other driveways in the city, and analysis of other plat approvals by the city.  The city’s mayor then closed the public hearing and stated that “we will have to defer this to another meeting for our own discussion of what we’ve heard tonight and our own thoughts about the issues, the two issues that we are supposed to be talking about.”

            In June 2004, the council met in a closed session to discuss a settlement offer regarding McNulty’s subdivision request.  Two weeks later, the council revisited McNulty’s application at its regular meeting.  The city’s attorney presented to the council a draft resolution prepared by the city’s staff.  The council did not discuss the draft resolution or any other matters concerning McNulty’s subdivision request.  The council voted unanimously to adopt the resolution, which “denied [McNulty’s request] for lack of satisfactory access due to public safety concerns and because the proposed driveway access fails to comply with the City’s Subdivision Regulation that protects natural slopes.”  McNulty again sought review by the district court, and the district court again granted summary judgment to the city.  McNulty now appeals.



On appeal from summary judgment, this court examines the record to determine whether any genuine issues of material fact exist 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).  Both parties concede that no issues of material fact exist.

The parties dispute the proper scope of the record on review.     McNulty argues that the council should have considered evidence that McNulty submitted on rehearing showing a modification to its subdivision application regarding the two issues on remand.  McNulty contends that because the council did not consider McNulty’s proposed modifications, the council violated our remand order, the rehearing was not fair, and the record was not clear and complete.  The council denied McNulty’s application “upon consideration of the 2002 application and supporting material relevant to the issues of road slopes and road safety matters, including but not limited to staff reports from emergency personnel, the City’s engineer and the applicant’s engineer.”  The council “did not consider any alteration of the 2002 application.”

On McNulty’s first appeal, we reversed the council’s original denial of McNulty’s application and remanded for municipal reconsideration under the Earthburners doctrine.  McNulty Constr. Co. v. City of Deephaven, No. A03-0889, 2004 WL 78046, at *1 (Minn. App. Jan. 20, 2004).  In Earthburners, the supreme court explained that

we have been reluctant to allow local boards an opportunity after the fact to substantiate or justify earlier decisions.  However, where, as here, the board has failed to discharge its responsibilities in connection with this application, we are compelled to offer it the opportunity to do so and to develop a record to allow meaningful appellate review.  However, to prevent any unfairness to the applicant, the board must confine its inquiry to those issues raised in earlier proceedings before the planning commission and county board while allowing adequate opportunity for a meaningful discussion of those issues.


Earthburners, Inc., v. County of Carlton, 513 N.W.2d 460, 463 (Minn. 1994) (internal citation omitted).  An Earthburners remand “reflects a concern expressed much earlier about ‘the danger of permitting the [governing body] to deny a special-use permit without contemporaneous findings or reasons and then permit[ting] its members after several months of thought to present reasons perhaps totally unrelated to the actual reasons for denying the permit . . . .’”  Interstate Power Co., Inc. v. Nobles County Bd. of Comm’rs, 617 N.W.2d 566, 577 (Minn. 2000) (quoting Zylka v. City of Crystal, 283 Minn. 192, 199, 167 N.W.2d 45, 51 (1969)) (alterations in original).  An Earthburners remand “[is] not intended to provide local government units with a routinized opportunity for a second bite at the apple by neglecting to provide an adequate record for review.”  Id. at n.6.  “Earthburners limits the remand to the same issues raised in the earlier proceeding.”  Id. at 578 n.7.

            At the rehearing, McNulty proposed new plans or modifications to its existing plans and did not limit itself to commenting only on its original submissions.  Its original application proposed access to the subdivided lot by way of a 20-foot-wide easement with a 12-foot-wide hard surface.  At the rehearing, McNulty proposed a driveway with “a 20 foot hard surface width.”  McNulty also admitted that the driveway was built on slopes exceeding 30 percent but proposed altering the original plan by including a “curve in the road [that] avoids the 30 percent slope” or building a bridge that spans the 30 percent slope. 

            The Earthburners doctrine is meant to limit the issues on rehearing to only the “same issues” initially raised.  On remand, the council was to review McNulty’s submitted preliminary-plat application and make findings that it should have originally made.  Because an Earthburners remand is specifically limited in scope, it would be contrary to the doctrine to permit McNulty to present evidence regarding matters that were not before the council in McNulty’s original application.  Therefore, the council’s decision on rehearing to limit McNulty to presenting evidence of whether its original application complied with the city’s ordinance, and thus to not consider McNulty’s proposed alterations, complied with our remand instructions. 

            Additionally, McNulty cites no authority that requires the council to approve McNulty’s preliminary plat because it suggests modifications to cure the plat’s nonconformance with the city’s ordinances and comprehensive plan.  A municipality’s subdivision regulations “may permit the municipality to condition its approval on compliance with other requirements.”  Minn. Stat. § 462.358, subd. 2a (2004) (emphasis added).  “A subdivision application shall be preliminarily approved or disapproved within 120 days following delivery of an application completed in compliance with the municipal ordinance by the applicant.”  Minn. Stat. § 462.358, subd. 3b (2004) (emphasis added).  Under the city’s ordinances, the planning commission is required to approve or deny the preliminary plat “[f]ollowing (a) review of the preliminary subdivision proposal and other material submitted, and (b) negotiations with the subdivider on changes deemed advisable and the kind and extent of improvements to be made.”  Deephaven, Minn., Subdivision Regulation 1200.07, subd. 3 (1986).  Conditional approval by the council is “deemed an expression of approval of the layout submitted on the preliminary plat as a guide to the preparation of the final plat.”  Id., subd. 7 (1986).  Nothing in the city’s subdivision regulations requires the council to conditionally approve a preliminary plat that does not conform to the city’s ordinances or comprehensive plan.  See id., Subdivision Regulations 1200.01-.14 (1986).

McNulty also contends that the rehearing was not fair because the council (1) did not consider McNulty’s proposed modifications to its original application; (2) “continuously interrupted” McNulty’s owner, its attorneys, and its experts at the rehearing; and (3) “hindered” McNulty’s representatives from testifying by limiting the scope of their testimony.  “Where the municipal proceeding was fair and the record clear and complete, review should be on the record” before the municipality.  Swanson v. City of Bloomington, 421 N.W.2d 307, 313 (Minn. 1988).  Whether the record is clear and complete is a determination that this 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). 

McNulty’s argument is unpersuasive because the council properly limited the scope of the evidence presented to the slope and safety issues.  Moreover, the transcript of the rehearing shows that McNulty’s witnesses testified extensively at the rehearing.  Contrary to McNulty’s claim, the city’s attorney did not “continuously interrupt” McNulty’s witnesses.  The transcript of the hearing reveals that, after an initial debate about the scope of the rehearing, the city’s attorney only advised the council during McNulty’s presentation that testimony regarding a fire-suppression system, amended “20 foot and 12 foot modifications” to the driveway width, and a council member’s attempt to make a “quick comment” on previously approved preliminary plats was beyond the scope of the remand.  Any other “interruptions” during McNulty’s presentation were from council members asking relevant questions.  The council heard testimony and received evidence from McNulty’s owner, its attorney, and its expert witnesses.  Council members asked several questions related to the subdivision application.  A review of the transcript shows that the hearing was fairly conducted.

McNulty further claims that the record is not clear because the council did not discuss on the record its decision to deny McNulty’s request.  A municipality “must, at a minimum, have the reasons for its decision recorded or reduced to writing and in more than just a conclusory fashion.”  Honn v. City of Coon Rapids, 313 N.W.2d 409, 416 (Minn. 1981).  McNulty cites no authority for the proposition that the council is required to engage in a public debate regarding its reasons for denying McNulty’s application; the council was permitted to adopt at its public meeting a resolution explaining its reasons for denial.  The council’s reasons for denying McNulty’s subdivision request are recorded in great detail in its resolution, and the record in this case is clear.


McNulty next argues that the denial of its subdivision request was arbitrary because evidence shows that its application complied with the city’s ordinances regarding access and slope alteration.  The city responds that McNulty’s 2002 application, as submitted, provides inadequate access and alters slopes that exceed 30 percent grade.

In considering zoning cases, this court reviews 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).  This court gives great deference to the municipality’s broad discretion to approve a proposed land use and will reverse only in the rare instance when the decision lacks a rational basis.  SuperAmerica Group, Inc. v. City of Little Canada, 539 N.W.2d 264, 266 (Minn. App. 1995), review denied (Minn. Jan. 5, 1996).  A decision lacks a rational basis if it is unsupported by substantial evidence, rests on a legally insufficient reason, or is premised on subjective or unreasonably vague standards.  PTL, L.L.C. v. Chisago County Bd. of Comm’rs, 656 N.W.2d 567, 571 (Minn. App. 2003).  “[W]here a subdivision ordinance specifies standards to which a proposed plat must conform, it is arbitrary as a matter of law to deny approval of a plat which complies in all respects with the subdivision ordinance.”  Nat’l Capital Corp. v. Village of Inver Grove Heights, 301 Minn. 335, 337, 222 N.W.2d 550, 552 (1974).

            The city requires that “all streets must conform to the comprehensive plan and will be considered in their relation to existing and planned streets, to topographical conditions, to public convenience and safety, and in their appropriate relation to the proposed uses of the land to be served by such streets.”  Deephaven, Minn., Subdivision Regulation 1200.10, subd. 1 (1986).[1]  “Each lot must be provided with satisfactory access to an existing public street by means of a public or private street.”  Id., subd. 24.  McNulty’s application proposed a driveway with a 12-foot-wide hard surface; at the rehearing, it suggested modifying this to a 20-foot-wide hard surface.  The council found that the “proposed access as shown on the [original] application . . . is unsatisfactory as it . . . creates public safety concerns including [making] the entry and exit of emergency vehicles . . . difficult and dangerous.”

            The record supports the council’s finding.  A letter to the council from its police chief concluded that (1) the driveway, at 218 feet in length, “does not lend itself to adequate emergency response” because responders often carry “several pieces of emergency equipment to the scene”; (2) the narrowness of the driveway “does not lend itself to safe vehicular operation” in bad weather because any emergency vehicle sliding off the driveway would prevent others from passing, thereby taking those vehicles out of service; and (3) a proposed turnaround at the end of the driveway would not mitigate problems that could arise from the steep slope of the driveway.  The city’s fire chief and fire marshal reported that the “width is restrictive and does not allow to the doubling up of fire apparatus” and that the proposed turnaround would allow only the first emergency vehicle to turn around but that other vehicles would need to back down the driveway.  The record contains evidence that driveway access in McNulty’s application, originally proposing a 12-foot-wide driving surface, was not wide enough to permit safe and satisfactory access.  The council did not act arbitrarily or capriciously by denying the application for access reasons.

            The city’s comprehensive plan also provides that “[t]here shall be no alterations of slopes greater than 30%” and that “[s]lopes which are prone to severe erosion (30%) should be protected as permanent open space.”  The council found that “construction of the proposed driveway shown . . . on the [original] Preliminary Plat and Site Improvements Plan will require the alteration of slopes in excess of 30 percent.”  The record supports this finding.  An engineer retained by the city reported that “based on the existing contour information provided on the [site-improvement] plan, it has been determined that no driveway at this location . . . can be constructed without altering existing cross slopes which range between approximately 37.5% . . . and 42%.”  In a letter to the city in May 2004, McNulty’s engineer admits that “[a] small portion of the driveway is on areas of surface slopes in excess of 30%.”  McNulty’s engineer repeated this at the rehearing: “The City Engineer . . . does say that we do cross some slopes . . . that are in excess of 30 percent and we agree that that is the case.”  The council did not act arbitrarily or capriciously by denying McNulty’s application because of slope concerns.


            McNulty further argues that the council violated the open-meeting law by discussing his application in a closed session on June 7, 2004.  Meetings “of the governing body of a . . . statutory or home rule charter city” must be open to the public.  Minn. Stat. § 13D.01, subd. 1(b)(4) (2004).  The invocation of the attorney-client privilege can, in proper circumstances, constitute an exception to the open-meeting law.  Minneapolis Star & Tribune Co. v. Hous. & Redev. Auth., 310 Minn. 313, 323, 251 N.W.2d 620, 625 (1976); Minn. Stat. § 13D.05, subd 3(b) (2004). 

            McNulty, however, presents no evidence that an open-meeting-law violation occurred, relying exclusively on speculation.  At the end of the rehearing, the council closed the public hearing and stated that it would discuss McNulty’s application at its next regular meeting.  Before the next regular meeting, the council met in a closed session.  According to the city’s administrator, the closed session was called to “discuss [McNulty’s] settlement offer proposed by [McNulty’s] counsel after the May 17, 2004 hearing and litigation strategy.”  The council then met at its regular meeting on June 21, 2004, and denied McNulty’s application without discussion.  McNulty presents no evidence that the council violated the open-meeting law.


            Lastly, McNulty argues that the city treated him “unfairly and differently than other applicants, which raises equal protection and due process concerns.”  To comply with equal protection,

[a] zoning ordinance must operate uniformly on those similarly situated . . . .  [T]he equal protection clauses of the Minnesota Constitution and of the Fourteenth Amendment of the United States Constitution require that one applicant not be preferred over another for reasons unexpressed or unrelated to the health, welfare, or safety of the community or any other particular and permissible standards or conditions imposed by the relevant zoning ordinances.


Nw. College v. City of Arden Hills, 281 N.W.2d 865, 869 (Minn. 1979) (quotation omitted).  “Essential to a ruling that equal protection has been denied by discriminatory administration of the laws is a finding that the persons treated disparately are similarly situated.”  State by Spannaus v. Lutsen Resorts, Inc., 310 N.W.2d 495, 497 (Minn. 1981). 

McNulty only provides evidence of other preliminary plats approved by the City between 1996 and 2002 but makes no legal argument for an equal-protection claim, including that it was “similarly situated” with the other applicants.  See Ganguli v. Univ. of Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994) (declining to address an issue not supported by legal argument or citation).

Regarding McNulty’s due-process claim, the “denial or approval of a preliminary-plat application is a quasi-judicial administrative decision.”  Hurrle v. County of Sherburne ex rel. Bd. of Comm’rs, 594 N.W.2d 246, 249 (Minn. App. 1999).  “[Q]uasi-judicial proceedings do not invoke the full panoply of procedures required in regular judicial proceedings.”  Barton Contracting Co., Inc. v. City of Afton, 268 N.W.2d 712, 716 (Minn. 1978).  Due process requires “reasonable notice of a hearing and a reasonable opportunity to be heard.”  Id.  McNulty was provided with reasonable notice and an opportunity to be heard prior to the council’s decision, and McNulty’s due-process claim is without merit.


[1]The parties do not dispute that the proposed driveway constitutes a “street” under the City’s ordinances.