                      This opinion will be unpublished and
                      may not be cited except as provided by
                      Minn. Stat. § 480A.08, subd. 3 (2014).

                           STATE OF MINNESOTA
                           IN COURT OF APPEALS
                                 A16-0046

                              Katherine Gayl, et al.,
                                   Plaintiffs,

                             Paul R. Scarpari, et al.,
                                  Appellants,

                                        vs.

                               City of Rosemount,
                                  Respondent,

                            Friedges Excavating, Inc.,
                                  Respondent.

                              Filed August 8, 2016
                            Affirmed; motion denied
                                Halbrooks, Judge


                          Dakota County District Court
                           File No. 19HA-CV-15-462

James P. Peters, Law Offices of James P Peters PLLC, Glenwood, Minnesota (for
appellants)

Jessica E. Schwie, Jardine, Logan & O’Brien, PLLP, Lake Elmo, Minnesota (for
respondent City of Rosemount)

Timothy J. Grande, Patrick C. Summers, DeWitt Mackall Crounse & Moore, S.C.,
Minneapolis, Minnesota (for respondent Friedges Excavating, Inc.)

      Considered and decided by Hooten, Presiding Judge; Halbrooks, Judge; and

Jesson, Judge.
                           UNPUBLISHED OPINION

HALBROOKS, Judge

          Appellants, residents of the immediate area, challenge the district court’s grant of

summary judgment to respondent City of Rosemount following the city’s approval of a

planned unit development (PUD). Appellants argue that the city lacked a rational basis to

rezone the parcel of property the PUD is located on and that the city acted arbitrarily and

capriciously when it approved the preliminary plat, master development plan, and final

plat for the PUD. Before oral argument, respondents moved to dismiss the appeal as

moot. We deny the motion to dismiss because respondents did not satisfy their burden to

establish that the appeal is moot. Because the city had a rational basis to rezone the

property and did not act arbitrarily or capriciously by approving the plats and plan, we

affirm.

                                            FACTS

          In the summer of 2014, Friedges Excavating, Inc. applied to the city for a PUD in

order to develop a parcel of land known as Wilde Lake Estates (the property). The

property, approximately 56 acres of land, is located just to the north of McAndrews Road

and is divided by Dodd Boulevard.            Forty-nine acres are located between Dodd

Boulevard and South Robert Trail, and another seven acres are located to the west

between Dodd Boulevard and a neighboring property. There are three wetlands on the

property. Thirty-seven acres of the property were formerly zoned agricultural (AG), and

the remaining 19 were zoned rural residential (RR). Based on the zoning, Friedges could




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have developed 11 buildable lots. Friedges applied for a PUD, in part to increase the

number of buildable lots to 14.

      The planning commission held a public hearing on July 22, 2014. During that

meeting, Friedges asked the planning commission to recommend to the city council that it

approve the preliminary and final plats and the master development plan. According to

the plan, the seven acres to the west of Dodd Boulevard were to be divided into two lots.

The other 12 lots were to be located on a cul-de-sac connected to the road on the property

to the east of Dodd Boulevard. The properties to the east of Dodd Boulevard are

bordered by wetlands on the north and south sides.

      In accordance with the PUD procedure outlined in the Rosemount City Code,

Friedges asked the city to rezone the property from AG and RR to RR PUD. To secure

the extra lots and build the development as it planned, Friedges requested that the city

(1) decrease the minimum lot size on the property by 20% (2.5 acres to 2 acres);

(2) decrease the minimum lot width by 20% (200 feet to 160 feet); (3) increase the

maximum density by 20% (1 unit per 5 acres to 1 unit per 4 acres); and (4) extend the

maximum cul-de-sac length from 700 feet to 1,010 feet.

      In exchange for these modifications, approximately 4.5 acres of land would be

dedicated to the city for a regional trail that runs from Lebanon Hills Regional Park to

downtown Rosemount and two outlots for rest areas along the trail and a possible future

underpass. The conditions of approval created minimum design standards for the homes

that could be built on the property. Finally, Friedges promised to put $226,700 into




                                            3
escrow, with the expectation that the money would be used by the city to pave Dodd

Boulevard.

       The July 22 meeting was open for public comment for approximately 40 minutes.

Fifteen people spoke for or against the proposal—the majority in opposition.          The

speakers raised concerns about the potential paving of Dodd Boulevard, changing the

minimum lot size, and changing the maximum cul-de-sac length. They also voiced

concerns about changing the rural character of the area; the project’s impact on wetlands,

property values, storm water management, and traffic; safety; and potential septic system

problems. Ultimately, the planning commission recommended that the city council allow

Friedges to develop the property as a PUD.

       The city council considered the proposal in a public meeting on November 18,

2014. The city received several written objections, including one from appellants that

highlighted concerns about the PUD’s proposed density standards. During the meeting,

citizens voiced many of the same concerns that they had expressed in the planning

commission meeting. After an amendment to relocate the placement of a road on the

property to respond to neighborhood concerns, the city approved Friedges’s application,

including the preliminary plat, master development plan, final plat, and subdivision

agreement and adopted an ordinance to amend the zoning district for the property to RR

PUD.

       Appellants challenged the city’s decision in a complaint filed in district court

under Minn. Stat. § 462.361, subd. 1 (2014). Appellants sought a declaration that the

project violates ordinances and statutes and requested that the approval be vacated.


                                             4
Appellants also requested injunctive relief, reversing the city’s decision, enjoining

Friedges from developing the property, and enjoining the city from granting any

approvals on the application. Both parties moved for summary judgment, and the district

court granted respondents’ motion. This appeal follows.

                                     DECISION

                                             I.

       Prior to oral argument, Friedges filed a motion, in which the city joined, to dismiss

this appeal as moot.     The mootness doctrine “requires that we decide only actual

controversies and avoid advisory opinions.” In re McCaskill, 603 N.W.2d 326, 327

(Minn. 1999). When a decision on the merits is no longer necessary or an award of

effective relief is no longer possible, an appellate court should dismiss an appeal as moot.

Dean v. City of Winona, 868 N.W.2d 1, 5 (Minn. 2015) (citing In re Application of

Minnesgasco, 565 N.W.2d 706, 710 (Minn. 1997)). The burden of showing mootness is

on the party asserting it. Cardinal Chem. Co. v. Morton Int’l, Inc., 508 U.S. 83, 98, 113

S. Ct. 1967, 1976 (1993). An assessment of mootness requires “a comparison between

the relief demanded and the circumstances of the case at the time of decision in order to

determine whether there is a live controversy that can be resolved.” Minnesgasco, 565

N.W.2d at 710.

       Relying on Moore v. McDonald, 165 Minn. 484, 205 N.W. 894 (1925) (per

curiam), Troy v. City of St. Paul, 155 Minn. 391, 193 N.W. 726 (1923), and Apple Valley

Square v. City of Apple Valley, 472 N.W.2d 681 (Minn. App. 1991), respondents argue




                                             5
that the appeal is moot because the project is substantially complete. Each of the three

cases is distinguishable.

        In Moore, the supreme court held in a per curiam opinion that the question of the

appropriateness of denial of a temporary injunction restraining a railway company from

constructing a bridge was moot when, following denial, the bridge construction was

completed. 165 Minn. at 485, 205 N.W. at 895. The supreme court stated, “A reversal of

the order, and the issuance at this time of the temporary injunction asked for, would

accomplish nothing.” Id. Here, while Friedges has completed most of its work on the

development, not all of the homes have been constructed nor have all of the lots been

sold.

        In Troy, the supreme court held that the appeal was moot because the city

ordinance on which the appeal was based had been amended while the appeal was

pending. 155 Minn. at 393-94, 193 N.W. at 727. Here, respondents do not assert that the

law has changed in a way that renders appellants’ claim moot. In addition, the claimant

in Troy filed an original complaint before the city had issued a permit for the building.

Id. at 393, 193 N.W. at 727. But after the original complaint was dismissed, the city

issued a permit for the property and construction began. Id. The claimant did not attempt

to file an amended complaint until a month later. Id. By the time the challenge reached

the supreme court, construction was complete. Id. As previously noted, the construction

in the present matter is not complete nor did appellants wait until the city had already

granted approval of Friedges’s plan to challenge the project.




                                            6
       In Apple Valley Square, this court concluded that because the appellant did not file

suit until one month before the affected commercial development opened for business,

the case was barred by laches and dismissed as moot. 472 N.W.2d at 683. We stated

that, “given the delay in bringing the action and the substantial completion of the project,

equitable relief would not be appropriate.” Id. Appellants in this case did not delay in

seeking relief, but objected orally at the meetings on July 22 and November 18 and in

writing between the meetings.

       An award of effective relief could still be available for appellants. Appellants

stressed during oral argument that they do not object to development of the land. What

they challenge is the allowance for extra lots through the use of the PUD procedure. We

therefore conclude that respondents have not shown that effective relief is no longer

available, and this appeal is not moot.

                                            II.

       Appellants argue that the city did not have a rational basis to rezone the property.

In an appeal of a municipal zoning decision, “[w]e do not give any special deference to

the conclusions of the lower courts, but rather engage in an independent examination of

the record and arrive at our own conclusions as to the propriety of the city’s decision.”

Mendota Golf, LLP v. City of Mendota Heights, 708 N.W.2d 162, 180 (Minn. 2006).

       The standard of review for city zoning matters is “whether [a city’s] action was

reasonable.” AVR, Inc. v. City of St. Louis Park, 585 N.W.2d 411, 414 (Minn. App.

1998) (quotation omitted), review denied (Minn. Dec. 15, 1998). But we apply the

reasonableness standard differently depending on if the city’s decision is a legislative


                                             7
decision or a quasi-judicial decision, affording more deference to the decision if it is

legislative. Id. The adoption or amendment of a zoning ordinance, regardless of the size

of the tract involved, is a legislative decision. Honn v. City of Coon Rapids, 313 N.W.2d

409, 414 (Minn. 1981).

       We utilize a rational-basis standard of review for a legislative decision to

determine whether it is reasonable. Mendota Golf, 708 N.W.2d at 179. We will uphold a

decision to amend a zoning ordinance “unless the party challenging that decision

establishes that the decision is unsupported by any rational basis related to promoting the

public health, safety, morals, or general welfare.” Id. at 180 (quotation omitted). “[E]ven

if the city council’s decision is debatable, so long as there is a rational basis for what it

does, the courts do not interfere.” Honn, 313 N.W.2d at 415. When a legislative decision

is reviewed, “the challenger bears the burden of showing that the [city’s] stated reasons

are either without factual support in the record or are legally insufficient.” Larson v.

County of Washington, 387 N.W.2d 902, 906 (Minn. App. 1986), review denied (Minn.

Aug. 20, 1986).

       Respondents contend that the city’s decision to rezone the property is rationally

related to the promotion of public health and welfare because it furthers regional

recreational interests, protects wetlands and trees, and improves water quality.

Appellants respond that the city’s interests could be addressed using other means and that

the city actually rezoned the property for financial reasons. Appellants fail to address

how the city’s bases for rezoning the property are factually or legally insufficient, even if




                                             8
they could have been achieved through other means. We conclude that the city had a

rational basis for amending the ordinance.

                                             III.

      Appellants assert that the city’s approvals of the preliminary plat, final plat, and

master development plan were arbitrary and capricious.         Because the city had to

determine if Friedges’s application was lawful according to the Rosemount City Code,

the city’s approvals are akin to judicial proceedings, which qualifies them as quasi-

judicial decisions. See County of Washington v. City of Oak Park Heights, 818 N.W.2d

533, 539 (Minn. 2012) (describing the difference between legislative decisions and quasi-

judicial decisions). On appeal, we determine whether a city’s quasi-judicial decision is

reasonable. Yeh v. County of Cass, 696 N.W.2d 115, 124-25 (Minn. App. 2005), review

denied (Minn. Aug. 16, 2005). A quasi-judicial decision is unreasonable if it is arbitrary

or capricious. VanLandschoot v. City of Mendota Heights, 336 N.W.2d 503, 508 (Minn.

1983). If a city’s decision is “prohibited under the zoning ordinance,” it is arbitrary or

capricious, and we will reverse. Sunrise Lake Ass’n v. Chisago Cty. Bd. of Comm’rs, 633

N.W.2d 59, 62 (Minn. App. 2001).

      Appellants argue that Rosemount, Minn., City Code (RCC) § 11-4-3 (2015)

expressly precludes the use of a PUD on land that is zoned RR, relying on section E from

RCC § 11-4-3, which states: “Uses Permitted by PUD: None.”             The phrase “Uses

Permitted by PUD” is defined in RCC § 11-1-4 (2015) as “[a] use which is permitted only

if the PUD procedure is used and a plan is formally approved by the city” (emphasis

added). In other words, the “Uses Permitted by PUD” sections allow the city to use the


                                              9
PUD procedure in some districts to expand the acceptable uses. See RCC § 11-4-8(E)

(2015) (allowing the city to use the PUD procedure to permit developers to put in

manufactured home parks, which would not otherwise be allowed in the residential

zoning district outlined in RCC § 11-4-8(A) (2015)). But RCC § 11-4-3(B) allows for

property owners of RR-zoned property to use the property for “[s]ingle-family detached

dwellings.” Friedges therefore did not need to use the PUD procedure to build single-

family detached dwellings. And the use of a PUD for that purpose is not contrary to RCC

§ 11-4-3.

       Appellants contend that the property density standards approved by the city are

contrary to requirements set by the city’s ordinances and comprehensive plan.

Appellants rely on RCC § 11-10-6(B)(3) (2015), which provides:

              Each residential PUD or the residential portion of each mixed
              use PUD shall have a density within the range specified in the
              comprehensive plan for the PUD site. The density of
              individual buildings or lots within a PUD may exceed these
              standards, provided the density for the entire PUD does not
              exceed the permitted standards.

According to the city’s comprehensive plan, the density for property zoned RR is “[o]ne

(1) unit per five (5) acres.”

       But the city is allowed to deviate from the default density standards set in RCC

§ 11-10-6(B)(3) under RCC § 11-10-6(C)(2) (2015).          RCC § 11-10-6(C)(2) states,

“Regulations governing uses and structures in the PUD shall be the same as those

governing the underlying zoning district subject to the following: a. Regulations may be

modified expressly by conditions imposed by the council at the time of rezoning to



                                           10
PUD.” The conditions of the city’s approval to rezone the property amended the density

of the property from one unit per five acres to one unit per four acres. Therefore, the

city’s decision is not contrary to RCC § 11-10-6(B)(3).

      Appellants contend that the city unlawfully combined the preliminary and final

plat-approval processes when it approved both plats at the city council meeting. Under

Minn. Stat. § 462.358, subd. 3b (2014), a city code “may provide for the consolidation of

the preliminary and final review and approval or disapproval of subdivisions.” The RCC

allows for the consolidation of the preliminary and final plat approval when the following

conditions are met:

                    1.     The resulting subdivision shall contain no more
             than five (5) acres or three (3) lots for commercial plats, and
             no more than ten (10) acres or twenty (20) lots for residential
             plats.

                   2.     Resulting parcels shall conform with all zoning
             ordinance requirements.

                    3.    The proposed subdivision shall contain no more
             than one phase for final platting.

RCC § 12-2-5(B)(1)-(3).

      Appellants argue that the approved plats do not satisfy the first or second

conditions. According to the approved plats, the property includes only 14 lots, which

satisfies the first condition. And the resulting parcels conform with all zoning ordinance

requirements through the use of the PUD procedure.           The city therefore did not

unlawfully combine the approval processes.




                                           11
       Appellants also argue that the city granted the approvals out of order at the city

council meeting by approving the preliminary and final plats first instead of addressing

matters in the following sequence: (1) the preliminary plat, (2) the master development

plan, (3) the ordinance rezoning the property, and (4) the final plat. Appellants cite the

resolution numbers of the approvals as evidence to support its argument.           But this

argument lacks merit. Upon review of the city council meeting minutes and the video of

the meeting, the approvals were passed in the order that appellants argue they should

have been.

       Appellants argue that Friedges failed to timely submit a complete application and

application fees and failed to properly acquire plat approvals from the county before

receiving plat approvals from the city. Respondents assert that both arguments were not

properly raised before the city. In order to raise an issue on appeal, it must have been

properly raised before the local zoning authority. See Big Lake Ass’n v. St. Louis Cty.

Planning Comm’n, 761 N.W.2d 487, 491 (Minn. 2009) (applying the standard to a

certiorari review of a local zoning-board decision). To determine if an issue is properly

raised on appeal, “we review the record to determine whether the issue was fairly raised

for consideration by the” city council. Id. “The issue does not need to be framed in

precise legal terms, but there must be sufficient specificity to provide fair notice of the

nature of the challenge so that the zoning authority has an opportunity to consider and

address the issue.” Id.

       Appellants argue that the first issue was preserved by a letter sent to the mayor and

city council. But the letter did not claim that Friedges’s application was incomplete.


                                            12
Because no one provided the city with fair notice of the nature of the challenge, we

conclude that it was not properly raised and decline to address it. Appellants provide no

response for how the second argument was preserved, and we have found no reference to

the argument in the record. We therefore conclude that it is not properly raised on appeal

and decline to address it.

       Finally, appellants argue that the city failed to take a “hard look” at the relevant

issues by failing to give the public an adequate opportunity to be heard and improperly

relying on city staff reports before making its quasi-judicial decisions. We are not

persuaded.

       Residents engaged in an open discussion with the city council and other persons

involved in the PUD during two different meetings. During the planning commission

meeting, citizens were allowed to speak for 40 minutes. Following public comments, the

developer, city planner, city engineer, as well as members of the planning commission

responded to the public’s concerns. After the planning commission meeting, and up until

the city council meeting almost four months later, the city allowed the residents to submit

written support or opposition for the project. The city then opened the floor for public

comment during the city council meeting and allowed for discussion with the realtor, the

city planner, the mayor, and the city council for more than one and one-half hours. The

record does not support the assertion that the city improperly relied on its staff or failed to

provide the public with an opportunity to be heard before making its decision.

       Affirmed.




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