This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-702

 

Todd Sutton, et al.,

Respondents,

 

vs.

 

The Town Board of the Town of Princeton,

County of Mille Lacs, State of Minnesota;

Greg Anderson, Steve Heinks, Dan Minks,

Stephanie Johnston and John Moosbrugger,

constituting the members of said Board,

Appellant.

 

Filed ­­­January 9, 2007

Reversed and remanded; motion denied

Dietzen, Judge

 

Mille Lacs County District Court

File No. 48-CV-06-508

 

Grant W. Lindberg, Jimmy A. Lindberg, Lindberg & McKinnis, P.A., 200 Third Avenue Northeast, Suite 300, Cambridge, MN 55008 (for respondents)

 

Peter B. Tiede, Melanie P. Persellin, Murnane Brandt, 30 East Seventh Street, Suite 3200, St. Paul, MN 55101 (for appellant)

 

            Considered and decided by Lansing, Presiding Judge; Dietzen, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            Appellant township challenges the district court’s order granting respondent landowners’ petition for peremptory writ of mandamus approving landowners’ preliminary plat application, arguing that approval is not a clear duty imposed by law and that denial was supported by the record.  Because approval of a preliminary plat application is not a clear duty imposed by law, we reverse and remand.

FACTS

Respondents Todd and Gabrielle Sutton (the Suttons) own land in Princeton Township (township), Minnesota.  In September 2005, the Suttons filed a preliminary plat application with the township, seeking to subdivide the land.  After reviewing the application, the township’s planning commission expressed certain concerns about the project.  To meet those concerns, the Suttons amended the application to reduce the number of lots from ten to seven, plus an outlot.  The amended application also included a proposed private road.

            Before a meeting of the planning commission, the township received comments from various experts.  The township’s engineer stated: “Although this plat is in conformance with the Township Ordinances, it does not, from an engineering point of view, provide well-planned and efficient use of the land.”  The zoning administrator stated that he “recommends approval of the proposed plat, with conditions: 1) Applicant to pay park fees.  2) Plat to comply with any conditions the engineer may have.”  And while a Department of Natural Resources (DNR) hydrologist admitted that roads are not a DNR issue, he opined that a public road would be better than a private road.

            At the planning commission meeting, both the zoning administrator and the engineer stated that the plat satisfied the relevant township ordinances.  Also, the Suttons presented testimony supporting the application.  By a 4-2 vote, the planning commission recommended that the town board approve the application.

When the town board met the next day to consider the application, the Suttons presented additional testimony supporting the application.  The engineer stated that while the plat met the ordinance requirements, he believed it to be poor land use.  One board member concluded that the proposed private road did not serve public health, safety, and welfare.  After a motion to deny approval for the plat ended in a 2-2 vote, the board tabled the motion until the following meeting.

            At its next meeting, the board voted 3-2 to deny the preliminary plat application as not meeting the requirements of the ordinance.  The reasons given by the board for denying the application were: (1) the lot area and the angle of side-lot lines do not conform to design standards; (2) the plat contains an unapproved private road; (3) the township engineer found it was poor planning and land use; (4) the developer did not adequately address the concerns raised in the town board’s public meeting; and (5) the outlot did not conform to the ordinance.

            The Suttons then petitioned the district court for a peremptory writ of mandamus under Minn. Stat. § 586.04 (2004) to compel the township to approve the application or, in the alternative, for an alternative writ of mandamus under Minn. Stat. § 586.03 (2004) directing the township to approve the application or show cause why it did not do so.  To support their petition, Suttons submitted a memorandum of law and various exhibits, arguing that their application satisfied the township ordinance and, therefore, that the township lacked the ability to deny the application.  The township answered the petition and submitted a memorandum opposing the issuance of a peremptory writ, arguing that

its denial was supported by the record.  The Suttons argued that the township’s answer was statutorily barred.

            The district court ruled that the “preliminary plat before the board (in December 2005 and in January 2006) conformed to the Ordinance according to the Planning Commission’s approval, the Zoning Administrator’s memo, and the admission of the Engineer[,]” and that the denial of the plat was “unreasonable, arbitrary, capricious, and without basis in fact or support of the record.”  The district court then issued a peremptory writ of mandamus directing the township to approve the Suttons’ application.

            After its ruling, the district court reviewed the township’s answer to the petition and memorandum, and rejected the township’s argument that the audio tapes of the meetings should be transcribed to supplement the written minutes of the meetings.  The township appealed.  On appeal, the township moves to redact certain documents and references to those documents from its own brief as outside the record.

D E C I S I O N

I.

            The township argues that the district court erred in granting the Suttons’ petition for a peremptory writ, and that its decision to deny the plat application was supported by the record.  The township specifically contends that the district court refused to consider its submissions and denied it the opportunity to file the complete record. 

“Mandamus is an extraordinary legal remedy.” State v. Pero, 590 N.W.2d 319, 323 (Minn. 1999).  “The authority to issue a writ of mandamus is statutory.”  State v. Wilson (In re State), 632 N.W.2d 225, 227 (Minn. 2001); see Minn. Stat. §§ 586.01-.12 (2004) (outlining appropriate uses of the writ).  To be entitled to mandamus relief, the Suttons must show that: “1) the [government] ‘failed to perform an official duty clearly imposed by law’; 2) the Suttons ‘suffered a public wrong’ and were specifically injured by the township’s failure; and 3) the Suttons have ‘no other adequate legal remedy.’”  Breza v. City of Minnetrista, __ N.W.2d__, __, 2006 WL 3755187, at *2 (Minn. Dec. 21, 2006) (citations omitted).  A writ of mandamus “does not control the particular manner in which a duty is to be performed and does not dictate how discretion is to be exercised.”  Mendota Golf, LLP v. City of Mendota Heights, 708 N.W.2d 162, 171 (Minn. 2006).

When a decision on a writ of mandamus is based solely on a legal determination, we review that decision de novo.  Breza, __N.W.2d at __, 2006 WL 3755187 at *2.  A district court’s mandamus-related findings of fact however, are reviewed for clear error.  Pelican Group of Lakes Improvement Dist. v. Minn. Dep’t Natural Res., 589 N.W.2d 517, 518-19 (Minn. App. 1999); see Minn. R. Civ. P. 52.01 (stating that “[f]indings of fact . . . shall not be set aside unless clearly erroneous”). 

Mandamus is either peremptory or alternative.  Minn. Stat. § 586.03.  As Minn. Stat. § 586.04 states, “[w]hen the right to require the performance of the act is clear, and it is apparent that no valid excuse for nonperformance can be given, a peremptory writ may be allowed in the first instance. In all other cases the alternative writ shall first issue.”  In cases where an obligation to act exists, but valid reasons for not acting may also exist, the court may issue an alternative writ, which permits the officials to show cause explaining the “omission” of their act.  Minn. Stat. § 586.03; see also Mendota Golf, 708 N.W.2d at 171 n.5 (“An alternative writ of mandamus permits a defendant to answer the petition and show cause for not complying with the writ, while a peremptory writ does not.”). 

On appeal, the Suttons argue that its application conformed to the ordinance and, therefore, the township had no authority to deny it.  The Suttons rely on PTL, L.L.C. v. Chisago County Bd. of Comm’rs, 656 N.W.2d 567, 571 (Minn. App. 2003), which states that “when an ordinance specifies minimum standards to which subdivisions must conform, local officials lack discretionary authority to deny approval of a preliminary plat that meets those standards.”  But PTL is procedurally and factually distinguishable because it involved a writ of certiorari, not mandamus, and had a record for review that was not available in this case. 

Here, we do not have “omission” or “nonperformance” as described by the mandamus statutes, or “fail[ure] to perform” as described in Mendota Golf.  Minn. Stat. §§ 586.03, 586.04; Mendota Golf, 708 N.W.2d at 178.  Rather, we have a quasi-judicial decision to deny the application.  But the requirement that a township exercise its discretion in a certain manner, i.e., not arbitrarily or capriciously,[1] does not apply to writs
of mandamus, because a writ cannot be used to compel an entity to exercise its discretion in a particular manner.  Mendota Golf, 708 N.W.2d at 171.  Rather, the remedy to review zoning decisions of a municipality or township that are arbitrary, capricious, or unreasonable is declaratory judgment.  Id. at 178; Honn v. City of Coon Rapids, 313 N.W.2d 409, 416 (Minn. 1981).  Here, the township discharged its legal duty to perform when it denied the plat.  Thus, the district court erred in granting the peremptory writ of mandamus compelling approval of the preliminary plat.

We turn then to the Suttons’ remaining petition for alternative writ of mandamus.  Because the district court granted the petition for peremptory writ, it did not rule on the petition for an alternative writ.  The township argues that we should dismiss the alternative petition on the basis that it has discharged its legal duty to perform by denying the application, and that the Suttons may bring a declaratory judgment, which is a “plain, speedy, and adequate remedy in the ordinary course of law.”  Minn. Stat. § 586.02.  See Mendota Golf, 708 N.W.2d at 178 (“[W]e reiterate our guidance that the proper procedure for reviewing a city’s decision in a zoning matter generally will be a declaratory judgment action, possibly including a request for injunctive relief.”).  Thus, the Suttons’ petition for alternative writ may lack legal merit for the same reasons we have enunciated against the grant of the peremptory writ.  But because we do not have a complete record and the district court did not rule on the petition for alternative writ we remand to the district court.  And we observe that at this stage of the proceedings, the Suttons are not precluded from seeking to amend their petition to seek a declaratory judgment.

The district court’s review on remand may be on the record, so long as that record is “clear and complete.”  Swanson v. City of Bloomington,421 N.W.2d 307, 313 (Minn. 1988).  The record is likely to be “clear and complete” where there is “an accurate verbatim transcript of the proceedings.”  Id.  As such, the meeting transcripts offered by the township should be considered on remand.

II.

On appeal, the township sought to strike a number of documents from its own appendix as not part of the district court record.  We note that many of the documents it seeks to strike were properly before the district court.  But because we reverse and remand for further proceedings, the motion to strike is moot and is, therefore, denied. See, e.g., State v. Johnson, 659 N.W.2d 819, 822 (Minn. App. 2003) (stating that when the holding of the case has rendered the motion to strike moot, the motion is denied), review denied (Minn. July 15, 2003).

III.

In their brief, the Suttons argue that the district court erred by not awarding attorney fees, costs, and disbursements under Minn. Stat. § 586.09, which states that a plaintiff that prevails on a petition for a writ “shall recover the damage sustained, together with costs and disbursements.”  The township objected that the Suttons may not appeal a district court determination without filing a notice of review pursuant to Minn.
R. App. P. 106.  The Suttons withdrew the claim at oral argument.  Therefore, we decline to review this issue.

            Reversed and remanded; motion denied.