This opinion will be unpublished and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
Louis Park Post No. 5632,
Veterans of Foreign Wars of the United States, Incorporated, et al.,
Clear Channel Outdoor, Inc., a Delaware corporation,
ASK Property Management, Inc., et al.,
City of St. Louis Park,
Hennepin County District Court
File No. 27-CV-03-007593
Marvin A. Liszt, David K. Nightingale, Bernick & Lifson, 1200 The Colonnade, 5500 Wayzata Boulevard, Minneapolis, MN 55416 (for appellant)
Thomas M. Scott, Campbell Knutson, 1380 Corporate Center Curve, #317, Eagan, MN 55121 (for respondent)
Considered and decided by Wright, Presiding Judge; Randall, Judge; and Halbrooks, Judge.
In this appeal from the district court’s entry of summary judgment in favor of respondent-city on appellant’s challenge to respondent’s grant of a conditional use permit requiring that appellant’s billboard be removed, appellant argues that respondent (1) misinterpreted and misapplied its ordinance; (2) acted unreasonably, arbitrarily, and capriciously by neglecting to issue proper findings supporting its decision; and (3) violated appellant’s constitutional rights. We affirm.
This matter is before us for a second time. In an earlier decision, we affirmed in part and remanded the district court’s December 8, 2003 order granting summary judgment in favor of respondent City of St. Louis Park on all claims brought by appellant Clear Channel Outdoor, Inc. The facts underlying this matter are set forth in St. Louis Park Post No. 5632 v. City of St. Louis Park, 687 N.W.2d 405, 406-07 (Minn. App. 2004), review denied (Minn. Dec. 14, 2004). In that decision we held that summary judgment was properly granted to the city on Clear Channel’s claim that it was entitled to just compensation under the Minnesota Outdoor Advertising Control Act, Minn. Stat. § 173.17(c) (2002), but we remanded to the district court to address the propriety of summary judgment on Clear Channel’s remaining claims. St. Louis Park Post No. 5632, 687 N.W.2d at 410.
On remand, the district court granted the city’s motion for summary judgment on December 23, 2005, and dismissed Clear Channel’s remaining claims. The district court held that the city did not act unreasonably, arbitrarily, or capriciously when it granted the conditional use permit (CUP) to plaintiff ASK Property Management, Inc., on the condition that Clear Channel’s billboard be removed because the city properly applied its ordinance in doing so. The district court also held that, under the law of the case established in our earlier decision, Clear Channel was not entitled to just compensation on its due-process or takings claims. This appeal followed.
D E C I S I O N
On appeal from summary judgment, we determine whether any
genuine issues of material fact exist and whether the district court erred as a
matter of law. State by Cooper v. French, 460 N.W.2d 2,
Clear Channel argues that the district court erred by granting summary judgment in favor of the city because the city misinterpreted and misapplied its ordinance when it conditioned its approval of the CUP on the removal of Clear Channel’s billboard.
The interpretation of a local zoning
ordinance presents a question of law, which we review de novo. Clear
Channel Outdoor Adver., Inc. v. City of
The ordinance at issue provides
that, when a CUP application is submitted for a multitenant building and there are
no proposed exterior modifications resulting in an increase to the building’s
floor area, height, or density, the city may issue the CUP provided that “[a]ny
nonconformities existing on the site shall be brought into greater or complete
compliance . . . to the extent reasonable and possible.”
It is undisputed that the CUP
application at issue here relates to a multitenant building in which exterior
modifications that would change the building’s area, height, or density are not
proposed. It is also undisputed that the
presence of a billboard on the property constitutes a nonconforming use. The city granted the CUP subject to several
conditions, including a requirement to bring the site into greater compliance with
the city’s zoning ordinance by removing the billboard. The city’s actions reflect an interpretation
of section 36-404(6)(b)(2) that is consistent with the plain and ordinary
meaning of its terms. The city’s interpretation
of section 36-404(6)(b)(2) also is consistent with the city code’s stated
policy goal of eliminating “all nonconforming uses and certain other
nonconformities by . . . [e]ncouraging the elimination of
nonconformities or minimizing their impact on adjacent properties [and]
. . . [r]equiring certain nonconformities either to comply
. . . or terminate.”
Clear Channel also argues that the city abused its discretion by acting unreasonably, arbitrarily, and capriciously when it applied section 36-404(6)(b) so as to condition approval of the CUP on the removal of a nonconforming use that does not bear on or impact the use proposed by the CUP. In a related argument, Clear Channel maintains that the city’s application of section 36-404(6)(b)(2) constitutes an illegitimate exercise of the city’s police power.
We give great deference to a city’s
land-use decisions. SuperAmerica Group, Inc. v. City of Little
the purpose of the ordinance is to eliminate nonconforming uses.
support of its argument that the city’s application of section 36-404(6)(b)(2) is
not a legitimate exercise of the city’s police power, Clear Channel cites Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309 (1994). In Dolan,
the City of Tigard required a property owner to give up her constitutional
right to receive just compensation upon the city’s taking of her property in
exchange for the issuance of a building permit.
But Dolan is inapposite. Here,
the city did not require Clear Channel to give up a constitutional right. As we held in our earlier decision, Clear
Channel’s only constitutionally protected property interest is its interest in
its lease with the VFW.
[i]f the landowner chooses to forgo property development, the billboard may remain under the terms of the lease for so long as the landowner wishes. If the landowner chooses to develop the property before the lease expires, Clear Channel may leverage whatever remedies state law provides [against the VFW, the lessor,] if the landowner’s decision amounts to a breach of the billboard lease.
Clear Channel also argues that the city acted arbitrarily and capriciously by neglecting to issue findings that support its decision to grant the CUP subject to the billboard’s removal.
We review the grant of a CUP to
determine whether the city’s reasons for granting the CUP are sufficient to
allow judicial review. Sunrise Lake Ass’n, Inc. v.
The city approved the CUP in Resolution No. 02-078, which incorporates by reference a planning commission report that analyzed the CUP application. In support of the first factor in section 36-365(b), which requires the city to find whether the CUP is consistent with and supportive of the principles, goals, and objectives of the city’s comprehensive plan, the city found that “the proposed office use is in harmony with the general purpose and intent of the Zoning Ordinance and the Comprehensive Plan.” Addressing the second factor, whether the CUP is detrimental to the health, safety, morals, and general welfare of the community, the city found that
[t]his proposal is not detrimental to the health, safety and general welfare of the community. Staff does not foresee any traffic concerns with the applicant’s request. In fact, traffic generated by office uses should be minimal and less offensive to the area compared with the possible types of truck traffic that can be associated with other industrial uses, and which can generate noxious odors and noise.
With respect to the third factor, whether the CUP is consistent with the intent and purpose of the city’s zoning code and the zoning district in which the conditional use is located, the city found that the CUP “is consistent with the goals and objectives of the . . . zoning district. Although this property is zoned and guided industrial, [an] office [use] is allowed.” The fourth factor requires the city to determine whether the CUP will have undue adverse impacts on governmental facilities, services, or improvements. Regarding this factor, the city found that closing an access point to a city street was necessary because traffic through that location would have an undue, adverse impact on the street. As to the fifth factor, whether the CUP will have an undue, adverse impact on the use and enjoyment of properties in close proximity to the conditional use, the city found that the proposed use will not seriously depreciate surrounding property values and that “[t]he office use will have a minimal impact and thus be a good mix with the surrounding residential and other uses.” The city also considered the sixth factor, whether the CUP should be subject to certain design and landscape plans. In doing so, the city conditioned the issuance of the CUP on approval of the landscape plan by the zoning administrator. The city did not address the seventh factor, whether the CUP should be subject to approval of drainage and utility plans, because the proposed use would not change the building’s drainage and utility requirements. Regarding the final factor, whether the CUP should be subject to additional conditions necessary to protect the general welfare, public safety, and neighborhood character, the city imposed several conditions, including removal of the billboard.
These extensive findings satisfy both the city’s general obligation to set forth in more than a conclusory fashion written reasons for granting the CUP and section 36-365(b)’s specific requirement to address the eight factors. See, e.g., Citizens for a Balanced City v. Plymouth Congregational Church, 672 N.W.2d 13, 23 (Minn. App. 2003) (holding that city’s findings were sufficient because they incorporated by reference planning department’s findings, which detail the basis for eachfinding required by city code). Because these findings are sufficient to support the city’s decision to grant the CUP subject to certain conditions, including removal of the billboard, Clear Channel’s challenge on this ground fails.
Clear Channel also contends that summary judgment was improperly granted because the city violated Clear Channel’s constitutional right to procedural due process of law when it took Clear Channel’s property without paying just compensation.
We review de novo whether a party
was afforded procedural due process of law.
Comm’r of Natural Res. v. Nicollet
County Pub. Water/Wetlands Hearing Unit, 633 N.W.2d 25, 29 (Minn. App.
2001), review denied (
our earlier decision, we held that Clear Channel’s property interest is in its
billboard lease with the VFW.
a lease “unequivocally describes the designated structure as personal
property,” the lessee does not have a compensable property interest in the
designated structure. In re
next consider whether the city deprived Clear Channel of its property interest
in the lease with the VFW in violation of Clear Channel’s right to procedural due
process of law. As we held in our earlier
decision, the lease was not altered by the city’s grant of the CUP conditioned
on removal of the billboard.
Clear Channel also argues that the city unlawfully took Clear Channel’s property without just compensation, in violation of the United States and Minnesota constitutions.
property cannot be taken for public use without just compensation.
As in Naegele Outdoor Adver. Co., Clear Channel’s leasehold interest was not altered by the city’s action of granting the CUP on the condition that the billboard be removed. Clear Channel’s leasehold interest can be altered only by an early termination or breach of the lease by the lessor, the VFW. As such, Clear Channel’s property interest was not taken without just compensation. Moreover, like the lessee in Naegele Outdoor Adver. Co., Clear Channel does not have a compensable interest in the property because Clear Channel agreed to terminate its leasehold rights upon the VFW’s notice of early termination of the lease. Therefore, Clear Channel’s takings claim also fails.
Because there are no genuine issues of material fact, and because the district court did not err as a matter of law when it dismissed Clear Channel’s challenge to the city’s grant of the CUP on the condition that the billboard be removed, we affirm.
 The record establishes that Clear Channel’s lease with the VFW expired on August 24, 2006. However, during oral argument, Clear Channel’s counsel advised us that the lease had been renewed, which prevents this appeal from being rendered moot. See Mut. Serv. Cas. Ins. Co. v. Midway Massage, Inc., 695 N.W.2d 138, 141 (Minn. App. 2005) (holding that appeal may be dismissed as moot if, pending the appeal, an event occurs that makes a decision on the merits unnecessary or an award of effective relief impossible), review denied (Minn. June 14, 2005).
 Clear Channel argues that this requirement requires the
city to make a specific finding that the condition
is necessary to protect the general welfare, public safety, and neighborhood
character. But section 36-365(b)(8) does
not contain such a requirement. Rather,
it requires a finding as to whether the CUP shall be “subject to the imposition
of additional conditions as part of the [CUP if], in the opinion of the city council, such additional conditions are
necessary to protect the general welfare, public safety and neighborhood
Clear Channel also argues that the
city denied Clear Channel due process of law when the city failed to comply
with its own procedural mandates.