This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Sherri Borgquist,



County of Sherburne,


Filed October 20, 1998


Schumacher, Judge

Sherburne County District Court

File No. C197889

Sherri Borgquist, 13741 277th Avenue, Zimmerman, MN 55398 (pro se appellant)

Walter M. Kaminsky, Sherburne County Attorney, Kathleen A. Heaney, Assistant County Attorney, 13880 Highway 10, Elk River, MN 55330-4601 (for respondent)

Considered and decided by Davies, Presiding Judge, Schumacher, Judge, and Short, Judge.



Appellant Sherri Borgquist challenges the district court's grant of summary judgment rejecting her challenge to the denial by respondent County of Sherburne of her request to rezone land. We affirm.


Borgquist sought to have all land in the township of Livonia, Minnesota, currently zoned "General Rural" rezoned to "Agricultural." The matter was referred to the Sherburne County Zoning and Planning Board. The zoning board recommended that the county deny Borgquist's request, and the county did so. Borgquist then sought a declaratory judgment, alleging the county misapplied the relevant law, acted in a arbitrary and capricious manner, and violated the Minnesota Environmental Rights Act (MERA). The county, waiving a series of procedural problems with the case, moved for summary judgment. The district court granted the county's motion. Borgquist appeals.


On appeal from a summary judgment, appellate courts ask 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). A reviewing court views the evidence in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

Borgquist incorrectly alleges the mere existence of fact issues precludes summary judgment. See Minn. R. Civ. P. 56.03 (stating summary judgment to be granted if there is "no genuine issue as to any material fact") (emphasis added); Zappa v. Fahey, 310 Minn. 555, 556, 245 N.W.2d 258, 259-60 (1976) (defining "material fact"); Highland Chateau v. Minnesota Dep't of Pub. Welfare, 356 N.W.2d 804, 808 (Minn. App. 1984) (defining "genuine issue of fact"). Because Borgquist did not show any of the alleged factual issues were genuinely disputed or material in nature, she has not shown an error, that she was prejudiced by the alleged errors, or that reversal is proper. See Bloom v. Hydrotherm, Inc., 499 N.W.2d 842, 845 (Minn. App. 1993) (requiring appellant to show error and prejudice resulting from alleged error), review denied (Minn. June 28, 1993). Also, contrary to Borgquist's assertion, the district court's finding that Borgquist made her allegations in good faith does not preclude summary judgment. See Minn. R. Civ. P. 56.03 (good faith of plaintiff not among summary judgment considerations).

Because the county board, not the planning board, denied Borgquist's zoning request, we reject Borgquist's argument that the district court's review should have been limited to the record developed in front of the planning board. See Swanson v. City of Bloomington, 421 N.W.2d 307, 311 (Minn. 1988) (zoning decisions are reviewed on record made before local zoning body).[1]

Borgquist claims the denial of her zoning request is arbitrary and capricious because the county refused to let her make a full presentation of her case. Because Borgquist does not identify additional information which, if presented, would have required the county to change its decision, she has not shown the prejudice required for a reversal. See Bloom, 499 N.W.2d at 845; cf. Minn. R. Civ. P. 61 (harmless error to be ignored).

Borgquist claims the denial of her zoning request was arbitrary and capricious because the board's reasons for denial were "conclusory." We disagree. The district court ruled the county's reasons for denying the zoning request were adequately documented and the inconsistency between the requested rezoning and the county's Comprehensive Zoning Plan allowed denial of the request. See, e.g., Campion v. County of Wright, 347 N.W.2d 289, 292 (Minn. App. 1984) (stating inconsistency between zoning request and comprehensive plan allows denial of zoning request).

Borgquist alleges the district court failed to address certain issues. Because the district court did not address the issues, we will not address them. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding appellate courts generally consider only issues presented to and considered by district court). We note that were we to address the issues, we would find Borgquist's arguments unpersuasive.

Borgquist alleges summary judgment was improper because she was not allowed to make a full presentation of her position in the municipal proceedings. See Swanson, 421 N.W.2d 307 at 312-13 (requiring "scope and conduct" of review of zoning decision to be set considering "nature, fairness and adequacy" of municipal proceedings and record developed there). If a municipal proceeding is not fair or the record thereof not complete, the parties are "entitled to a trial or an opportunity to augment the record in district court." Id. at 313. Here, the county submitted affidavits addressing the inconsistency between Borgquist's zoning request and the Comprehensive Zoning Plan. Because Borgquist does not argue her zoning request is consistent with the Comprehensive Zoning Plan, and because an inconsistency between a zoning request and a Comprehensive Zoning Plan is, under Campion, legally sufficient to deny a zoning request, any error in Borgquist not being allowed to fully present a position that would not allow her to reach the result she wanted, is harmless. See Minn. R. Civ. P. 61 (harmless error to be ignored).[2]

Borgquist alleges the county attorney denied her access to documents, thereby prejudicing her case. Because Borgquist refused an extension offered by the district court and later agreed to a rescheduled hearing date, she waived any argument she may have had on this issue. See Citizens Nat'l Bank of Madelia v. Mankato Implement, Inc., 441 N.W.2d 483, 487 (Minn. 1989) (defining waiver as clear and intentional relinquishment of known right).

Borgquist alleges the district court erred in dismissing her MERA claims for failure to make a prima facie case. We assume her MERA claims were properly before the district court and review them. See State ex rel. Wacouta v. Brunkow, 510 N.W.2d 27, 29 (Minn. App. 1993) (stating standard of review for MERA rulings).

Borgquist alleges the county is not protecting certain resources. To support her argument, she cites a "Report" she wrote, detailing how current zoning is inconsistent with the Comprehensive Zoning Plan. The report seems to be based on Borgquist's analysis of scientific information, articles and data, much of which is not specific to the township. Also, it is unclear how any defects in the enforcement or content of the current zoning ordinance relate to the denial of Borgquist's request for rezoning.

Borgquist challenges the denial of her request for a temporary restraining order. The hearing for the temporary restraining order was to address the propriety of a restraining order pending a hearing on Borgquist's motion for an injunction. Because the district court granted summary judgment, it functionally denied the injunction. Our affirmance of the summary judgment and Borgquist's failure to appeal the denial of the temporary injunction preclude us from granting relief from the denial of the temporary restraining order. See In re Inspection of Minnesota Auto Specialties, Inc., 346 N.W.2d 657, 658 (Minn. 1984) (stating that if, during appeal, event occurs that makes award of effective relief impossible, appeal "will be dismissed as moot"); Apple Valley Square v. City of Apple Valley, 472 N.W.2d 681, 683 (Minn. App. 1991) (dismissing case as moot where award of effective relief was impossible). This analysis also addresses Borgquist's allegation that certain affidavits opposing her request for a temporary injunction should be struck from the record.


[1]The zoning administrator's affidavit, about which Borgquist complains, was submitted in the summary judgment proceedings and it addresses the relationship between Borgquist's zoning request and the county's Comprehensive Zoning Plan. Because the county used the inconsistency between the Comprehensive Zoning Plan and Borgquist's zoning request as a reason to deny the request, the affidavit is within the scope of evidence admissible during judicial review of zoning decisions. See Honn v. City of Coon Rapids, 313 N.W.2d 409, 416 (Minn. 1981) (stating evidence may be received in declaratory judgment proceeding to review zoning decision if evidence is relevant to issues raised to, and considered by, municipal body). Also, we reject Borgquist's argument that the affidavit is defective because it contains the zoning administrator's opinions. See Minn. R. Civ. P. 56.05 (requiring affidavits submitted in summary judgment proceedings to be admissible in evidence). The challenged opinions go to zoning issues and would be admissible at trial. See Minn. R. Evid. 702 (allowing experts to render opinion testimony).

[2]Borgquist also argues written information she gave the planning and county boards was not considered before her zoning request was denied. Even if she is correct, because she does not allege the written information would show her zoning request to be consistent with current Comprehensive Zoning Plan, there is no allegation that the information would allow a successful challenge to the denial of her zoning request.