This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. §480A.08, subd. 3 (1996).




John Ryden, et al.,



Itasca County,


James Cook, et al.,


Filed February 24, 1998

Affirmed and motion denied

Randall, Judge

Itasca County District Court

File No. C9-96-1505

Richard K. Sellman, Sellman Law Office, 1907 Third Avenue East, P.O. Box 37, Hibbing, MN 55746 (for appellants)

John J. Muhar, Itasca County Attorney, Michael J. Haig, Assistant Itasca County Attorney, 123 Northeast Fourth Street, Grand Rapids, MN 55744 (for respondent Itasca County)

Kent E. Nyberg, 20 Northeast Fourth Street, Suite 101, Grand Rapids, MN 55744 (for respondents James and Lynette Cook)

Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Forsberg, Judge.[*]



Appellants argue that a 1994 rezoning decision is void due to the landowners' failure to comply with the provisions of the county zoning ordinance and that because the rezoning decision is void, the district court erred in concluding appellants' challenge was untimely. We affirm.


Richard and Beverly Truman operated a small store, bait shop, and gas station with 3.2 beer sales on the subject property in Itasca County. Although the property was zoned residential, commercial use predated the adoption of the Itasca County Zoning Ordinance in 1969. On August 15, 1994, the Trumans applied to have their property rezoned from residential to commercial. The Trumans did not attach a verification petition containing the signatures of at least 50% of the record property owners within 300 feet of the affected property, as required by the Itasca County Zoning Ordinance.

On September 9, 1994, the Itasca County Planning and Zoning Department made a formal written request to the county board to rezone the property from residential to commercial. The county board approved the request and began proceedings to rezone the property. On October 5, 1994, the Itasca County Planning Commission held a public hearing. No opposition to the rezoning was presented at the hearing or communicated to the planning commission prior to the hearing. The commission recommended approval of the rezoning request, and the county board affirmed the recommendation.

Respondents James and Lynette Cook purchased the property and business from the Trumans sometime after the October 1994 rezoning decision. On March 29, 1996, the Cooks applied for a conditional use permit for an on-sale liquor lounge, and the Itasca County Planning Commission approved the application. The county board reviewed the commission's decision, pursuant to appellant's request, and granted the Cooks' conditional use permit for an on-sale liquor lounge.

On July 19, 1996, the Cooks applied for a "planned unit development" and a conditional use permit for a six-unit motel. The planning commission approved the planned unit development and the conditional use permit, and the county board granted the Cooks' request after a review requested by appellants.

In September 1996, appellants commenced a declaratory judgment action in district court, challenging the 1996 conditional use permits and planned unit development, and also challenging the 1994 rezoning. Appellants and respondents both moved for summary judgment. The district court dismissed appellants' challenge to the rezoning order and remanded challenges to the grant of the conditional use permits and planned unit development to the county for further findings. Appellants moved for amended findings and conclusions or for a new trial; however, the district court treated this motion as a request for amended findings. On June 16, 1997, the district court issued amended findings that did not affect the determinations of the original order. This appeal followed.

Respondents brought a special term motion to dismiss this appeal. The special term panel granted the motion in part, dismissing the portion of this appeal challenging the district court's remand of the conditional use permit and planned unit development issues to the county. The special term panel deferred to the panel considering the merits of this appeal a decision as to whether to dismiss the portion of the appeal challenging the district court's dismissal of appellant's challenge to the 1994 rezoning decision.



As a preliminary issue, we address respondents' motion to dismiss appellants' challenge of the district court's decision regarding the 1994 rezoning decision.

Appellants erred in appealing from the district court's June 16, 1997, order that amended the findings and effectively denied appellants' motion for a new trial. No trial was held in this case, and therefore, the district court's denial of appellants' motion for a new trial is not appealable. See Johnson v. Johnson, 439 N.W.2d 430, 431 (Minn. App. 1989) (holding absent a trial, a motion for a new trial is an anomaly and an order denying such motion is not appealable). Further, to the extent the June order denied appellants' motion for amended findings, the order is not appealable. See Amatuzio v. Amatuzio, 431 N.W.2d 588, 589 (Minn. App. 1988) (stating order denying motion for amended findings is not appealable), review denied (Minn. July 27, 1989).

The portion of the district court's May 8, 1997, order that effectively dismissed appellants' rezoning challenge on jurisdictional grounds was appealable. See Minn. R. Civ. App. P. 103.03(e) (stating appeal may be taken from order that "determines the action and prevents a judgment from which an appeal might be taken"); Bulau v. Bulau, 208 Minn. 529, 531, 294 N.W. 845, 847 (1940) (holding where dismissal is for lack of jurisdiction, order is appealable). Although appellants should have appealed from the May order rather than the June order, we will not dismiss the appeal if the notice of appeal was timely filed from the May order. Kelly v. Kelly, 371 N.W.2d 193, 195-96 (Minn. 1985) (a notice of appeal is to be liberally construed in favor of its sufficiency, and defects that are not misleading do not render it insufficient).

Appeals from orders are permitted for 30 days after the adverse party serves written notice of filing. Minn. R. Civ. App. P. 104.1. Appellants state in their brief that respondents never served them with written notice of filing of the May order. Respondents do not address this issue in their brief. In our review of the file, we are unable to conclusively determine whether or not respondents ever served appellants with written notice of filing. Respondents have provided this court with no proof that they served appellants with the notice of filing. "In the absence of specific information, we are unable to determine the adequacy of the alleged notice of filing." Matsch v. Prairie Island Indian Community, 559 N.W.2d 128, 129 (Minn. App. 1997). Thus, we deny respondents' motion to dismiss appellants' appeal from the district court's dismissal of their challenge of the 1994 rezoning decision. We address that appeal issue on its merits.


When reviewing a zoning issue, the appellate court is to conduct an independent examination of the local authority's decision. Northwestern College v. City of Arden Hills, 281 N.W.2d 865, 868 (Minn. 1979). The standard of review in zoning matters is whether the local authority's "decision was unreasonable, arbitrary or capricious, with review focused on the legal sufficiency of and factual basis for the reasons given."

Swanson v. City of Bloomington, 421 N.W.2d 307, 313 (Minn. 1988). A zoning decision should not be disturbed if a zoning authority gives legally sufficient reasons and the reasons are grounded in fact. NBZ Enters., Inc. v. City of Shakopee, 489 N.W.2d 531, 537 (Minn. App. 1992), review denied (Minn. Sept. 30, 1992).

In its May 8, 1997, order, the district court found that neither the zoning ordinance nor the enabling statute, Minnesota Statute chapter 394 (1996), provided for district court review of rezoning decisions. The court found, however, that a writ of certiorari provided the exclusive remedy to obtain review of the decision. The court then concluded that appellants' September 1996 petition to review the October 1994 rezoning decision was untimely. In the alternative, the district court concluded that the action was barred by laches because of the prejudice the Cooks, the latest buyers, would suffer if the rezoning decision were reversed more than two years later. The district court also determined that the county board's decision was reasonable under the circumstances.

Appellants argue that Itasca County was initially without any jurisdiction to rezone the property because the Trumans failed to perfect their rezoning request by obtaining the signatures of 50% of surrounding landowners. They claim that, because the Trumans failed to submit a request in compliance with the zoning code, the county was precluded from reviving the request by its own motion.

The Itasca County Zoning Ordinance provides:

Sec. 7.31 - An amendment to the zoning map may be initiated by the County Board, Planning Commission, or by the property owner of record.

Sec. 7.32 - In case of an amendment initiated by one or more property owners of record, a verification petition shall be filed with the Zoning Officer containing the signatures of not less than fifty (50) percent of the owners of property lying within 300 feet of the boundaries of the property affected by the proposed amendment.

Itasca County Zoning Ordinance §§ 7.31, 7.32 (1997).

Here, the property owners did apply for rezoning of their property without the requisite signatures. Appellant is correct in this. It is likely that the Trumans' application could not have properly supported a decision by the planning commission to rezone. The request lacked the required signatures. However, pursuant to a request from the county planning and zoning department, the county board itself initiated an action to rezone the Trumans' property. An action to rezone initiated by the county board does not require signatures of the surrounding property owners. Id., § 7.31. We cannot say as a matter of law that the county board's decision was unreasonable, arbitrary or capricious.

We conclude that the county board's decision is not void for lack of jurisdiction; we assume its decision is voidable and challengable so that we can address the timeliness of appellants' action in district court.

Appellants assert there is no time limit for challenging a county board's decision that is void for lack of jurisdiction. They claim that since the county board made its decision without jurisdiction, their appeal action cannot be untimely. Appellants cite no authority in support of their assertion that there can be no time limits on appeals from void actions, and prejudicial error is not apparent here. See Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) (holding unsupported assertion waives argument "unless prejudicial error is obvious on mere inspection"). We conclude that the district court did not err in considering the issue of untimeliness.

Here, the district court concluded that appellants had no remedy under the zoning ordinance or Minnesota statutes and that a writ of certiorari pursuant to Minnesota Statute Chapter 606 (1996) was the only means available for appellants to obtain review of the rezoning decision. Because appellants did not request a writ of certiorari, and the time limit for doing so under Minn. Stat. § 606.01 (1996) is 60 days, the district court determined that it did not have jurisdiction to hear the rezoning issue.

If neither the statutes nor the appellate rules grant a right of judicial review of a quasi-judicial decision, certiorari is the only method available for review. Neitzel v. County of Redwood, 521 N.W.2d 73, 76 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994). Appellants, however, are contesting a rezoning matter. The supreme court has specifically stated that rezoning matters are legislative, rather than quasi-judicial, in nature and are not appropriately reviewed pursuant to a writ of certiorari. Honn v. City of Coon Rapids, 313 N.W.2d 409, 416-17 (Minn. 1981). Thus, certiorari was not the proper means for reviewing this decision.

Respondents insist that because appellants challenged the procedure employed by the county board, rather than the actual merits of the decision to rezone, this was a quasi-judicial decision. Quasi-judicial decisions are only "those administrative decisions which are based on evidentiary facts and which resolve disputed claims of rights." Meath v. Harmful Substance Compensation Bd., 550 N.W.2d 275, 279 (Minn. 1996). Appellants' arguments regarding procedure arose after the decision was made to rezone. The board was not resolving any disputed claims of right when it approved the rezoning. Therefore, the board was not making a quasi-judicial decision, and the district court erred in concluding that a writ a certiorari was the only means of obtaining judicial review.

Although appellants' action is not barred for failure to bring a timely writ of certiorari, we conclude that it is barred by the doctrine of laches. Determining whether the doctrine of laches applies is a factual question. Harr v. City of Edina, 541 N.W.2d 603, 606 (Minn. App. 1996). Only clearly erroneous findings of fact will be set aside. Minn. R. Civ. P. 52.01. Initially, the district court must determine

"whether there has been such an unreasonable delay in asserting a known right, resulting in prejudice to others, as would make it inequitable to grant the relief prayed for."

Harr, 541 N.W.2d at 606 (quoting Fetsch v. Holm, 236 Minn. 158, 163, 52 N.W.2d 113, 115 (1952)). The doctrine prevents someone "'who has not been diligent in asserting a known right from recovering at the expense of one who has been prejudiced by the delay.'" Id., (quoting Aronovitch v. Levy, 238 Minn. 237, 242, 56 N.W.2d 570, 574 (1953)).

Here, the current owners of the property in question, the Cooks, purchased it after the 1994 rezoning. As the district court noted, the Cooks purchased the property intending to use it for commercial purposes. Further, the request for rezoning in 1994 was approved by the county board without community objection until appellants' challenge, approximately two years after the rezoning decision. As the district court states, all the property owners within one-half a mile of the property in question, including appellants, were notified of their right to present any opposition to the rezoning by mail or at a public hearing.

Appellants conceded at oral argument that the 1994 rezoning decision was neither protested nor appealed because they took no issue with the continued operation of the grocery/bait store. Their present disfavor and their present challenge lies with the Cooks' recent request for an on-sale liquor permit and for permission to construct a motel on the property. The problem is that appellants overlooked a possible challenge to a rezoning they did not mind; they now attempt to assert an unlimited option to resurrect a legal objection to rezoning that they do mind. The record is clear that there would be severe prejudice to the present property owners if a four-year-old zoning decision is reopened. The district court came down on the side of the zoning decision by the county board and on the side of the present owners.

As an appellate court of review, we cannot say the county board's initial decision to rezone is void under the applicable county zoning ordinances. Assuming the rezoning decision is voidable and subject to challenge, we conclude the district court's determination that appellants' present action is barred by laches is not clearly erroneous.

Affirmed and motion denied.

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