Hills of Bunker Lake Homeowners, Appellant, vs. The City of Andover, Respondent, Rademacher Companies, Inc., Respondent. C7-98-1651, Court of Appeals Unpublished, January 26, 1999.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-98-1651

Hills of Bunker Lake Homeowners,

Appellant,

vs.

The City of Andover,

Respondent,

Rademacher Companies, Inc.,

Respondent.

Filed January 26, 1999

Affirmed

Short, Judge

Anoka County District Court

File No. C9974052

Thomas H. Goodman, Siegel, Brill, Greupner, Duffy & Foster, P.A., 1300 Washington Square, 100 Washington Avenue South, Minneapolis, MN 55401; and

Patrick J. Fugina, 229 Jackson Street, Suite 134, Anoka, MN 55303 (for appellant)

Daniel J. Trudeau, Daniel L. Scott, King & Hatch, P.A., 1500 Landmark Tower, 345 St. Peter Street, St. Paul, MN 55102 (for respondent City of Andover)

John Paul Martin, Hessian & McKasy, P.A., 4700 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent Rademacher Companies, Inc.)

Considered and decided by Kalitowski, Presiding Judge, Short, Judge, and Klaphake, Judge.

U N P U B L I S H E D O P I N I O N

SHORT, Judge

In 1988, the City of Andover issued a special use permit ("SUP") to Rademacher Companies, Inc. ("Rademacher") to install gas, motor fuel, and propane tanks in conjunction with its proposed grocery and gas station development. Approximately nine years later, the Hills of Bunker Lake Homeowners ("homeowners") protested Rademacher's still-uncompleted development by challenging the validity of its SUP. On appeal from the trial court's affirmance of Rademacher's SUP, the homeowners argue: (1) the City of Andover ("city") acted arbitrarily and capriciously in granting Rademacher's SUP without sufficient factual support; and (2) the city's sunset clause now voids the SUP. We affirm.

D E C I S I O N

Land use decisions are entitled to great deference and will be disturbed on appeal only in instances where the municipality's decision has no rational basis. Honn v. City of Coon Rapids, 313 N.W.2d 409, 416-17 (Minn. 1981); Swanson v. City of Bloomington, 421 N.W.2d 307, 311 (Minn. 1988); see also Carl Bolander & Sons Co. v. City of Minneapolis, 502 N.W.2d 203, 207 (Minn. 1993) (noting standard of review for governmental decisions is whether they were arbitrary or capricious). Landowners challenging a municipality's approval of a SUP bear a heavier burden than those objecting to a denial. Board of Supervisors v. Carver County Bd. of Comm'rs, 302 Minn. 493, 499, 225 N.W.2d 815, 819 (1975).

The homeowners argue the city lacked sufficient support for its grant of Rademacher's SUP, and thus acted arbitrarily and capriciously in issuing the permit. A lack of contemporaneous findings in support of a municipal decision is per se arbitrary and capricious. Zylka v. City of Crystal, 283 Minn. 192, 198, 167 N.W.2d 45, 50 (1969) (affirming trial court's invalidation of SUP denial because municipal body did not preserve record, did not make findings of fact, and did not record any reasons for its action). However, when reasons for issuing a permit are given, we review the decision only to determine whether the reasons were legally sufficient and based on fact. Swanson, 421 N.W.2d at 313.

The record shows: (1) Rademacher's proposed development is located in a neighborhood-business zoned district; (2) the Andover Planning and Zoning Commission, in making its recommendation for approval, reviewed the proposed development's exact location, number of parking stalls, and square-footage requirement; (3) without public opposition, the city council considered the commission's recommendation along with Rademacher's complete application during a recorded, public hearing; and (4) the city council adopted the commission's recommendation by resolution and included conditions on the permit that assured compliance with city codes and required reviews by the Andover Review Committee.

Given these facts, the city council's approval of Rademacher's SUP not only is supported by evidence in the record but also satisfies the standard set forth in the city's zoning ordinance. See Andover, Minn., Zoning Ordinance No. 8 § 5.03(B) (1997) (requiring city council to consider planning commission's recommendation, examine proposed permit's effect on surrounding area, and determine, by resolution, that permit will not harm public); Chandler v. Kroiss, 291 Minn. 196, 202, 190 N.W.2d 472, 476 (1971) (stating "compliance with the mandates of the ordinance and case law is sufficient" to support grant of permit). Thus, although it could have developed more detailed findings in support of its decision, the city did not act arbitrarily and capriciously in granting Rademacher's SUP.

II.

The homeowners also argue that even if the city properly granted Rademacher's SUP in 1988, the city's sunset clause voided this permit. We disagree. A zoning ordinance should be construed (1) according to the plain and ordinary meaning of its terms, (2) in favor of the property owner, and (3) in light of the ordinance's underlying policy goals. Frank's Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608-09 (Minn. 1980); Medical Servs., Inc. v. City of Savage, 487 N.W.2d 263, 266 (Minn. App. 1992). No law shall be construed to be retroactive unless clearly and manifestly so intended by the legislature. Minn. Stat. § 645.21 (1998); see also Mason v. Farmers Ins. Cos., 281 N.W.2d 344, 348 (Minn. 1979) (noting laws presumed prospective absent contrary and explicit indication).

Andover, Minn., Zoning Ordinance No. 8 § 5.03(D) (1997), states:

If the City Council determines that no significant progress has been made in the first twelve (12) months after the approval of the Special Use Permit, the permit will be null and void.

The plain language of this clause does not indicate a retroactive effect. See Minn. Stat. § 645.21 (requiring clear intent for statutes to apply retroactively). Moreover, the Andover Planning and Zoning Commission, while recommending the enactment of the sunset clause, noted this provision does not affect a SUP already in existence; the city council followed this recommendation. See Frank's, 295 N.W.2d at 609 (interpreting zoning ordinance in light of legislative intent). We conclude the city's sunset clause does not nullify permits in existence before its enactment. Under these circumstances, the trial court correctly determined Rademacher's SUP is unaffected by this provision.

Affirmed.