Mark R. Zweber v. Credit River Township

This opinion will be unpublished and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
A14-0893

Mark R. Zweber,
Respondent,

vs.

Credit River Township, et al.,
Appellants.

Filed March 16, 2015
Reversed
Hudson, Judge

Scott County District Court
File No. 70-CV-13-5687

Thomas M. Fafinski, Nathan W. Nelson, Lesley J. Adam, Virtus Law, PLLC, Brooklyn
Park, Minnesota (for respondent)

Paul D. Reuvers, Jason J. Kuboushek, Iverson Reuvers Condon, Bloomington, Minnesota
(for appellants)

Considered and decided by Hudson, Presiding Judge; Bjorkman, Judge; and

Minge, Judge.

UNPUBLISHED OPINION

HUDSON, Judge

Appellants county and township challenge the district court’s judgment

determining that it had subject-matter jurisdiction to address respondent developer’s

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

constitutional claims arising from the approval of his plat application with conditions.

Because the plat approval subject to conditions is a quasi-judicial action, which is

reviewable only by certiorari appeal within 60 days, and because respondent’s

constitutional claims are not separate and distinct from that action, we reverse.

FACTS

In January 2006, respondent Mark R. Zweber submitted to appellant Scott County

a preliminary plat application for a proposed 39-lot subdivision, Estates of Liberty Creek

(Liberty), to be located on an approximately 100-acre parcel of undeveloped land in

appellant Credit River Township. The preliminary plat’s northern section contained one

through road; the southern section contained a double cul-de-sac, to be accessed through

a road located in Territory, an adjacent development that had been established by Laurent

Development Company, LLC (Laurent).

In March 2006, Laurent’s president contacted county planning staff and officials

with concerns relating to Liberty’s street interconnectivity. After county and township

staff met with Zweber to discuss amending the plat, he changed the proposal to add a

through connection in the area of the previous cul-de-sac. A month later, Laurent’s

president wrote again to county officials, stating that Laurent was “still . . . very upset”

with the proposed Liberty plat and suggesting a more westerly location for the new

through street, a connection to County Road 8 for Liberty, and a different plat layout.

County planning staff responded that a connection to Highway 8 was not recommended.

In August 2006, Laurent representatives once more contacted county officials and

spoke at a county planning advisory commission meeting expressing concerns about

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inadequate traffic circulation, road alignment close to Territory, and construction phasing

diverting all construction traffic through residential areas. The county planning advisory

commission recommended plat approval, with a new condition of phased construction

proceeding from west to east. Zweber, however, asserted that starting construction on the

west would require obtaining a roadway easement from the adjoining westerly property

owner and involve prohibitive road-construction costs.

Two weeks later, Laurent’s president also wrote to county officials, requesting that

Zweber disconnect a planned connection allowing traffic between a cul-de-sac in Liberty

and a cul-de-sac in Territory. In September 2006 the county board voted to approve the

preliminary plat with conditions, including initial construction phasing from the west and

barricading the connection with Territory until the development of Liberty was 90%

complete. In October 2006, the county planning manager informed Zweber of the

preliminary plat approval.

In July 2007, the county planning commission recommended final plat approval,

but Zweber indicated that he had no plans to begin construction activity that year and

submitted a different development plan. The next month, Zweber, the township, and the

county board entered into a three-way Master Development Agreement, under which

Zweber agreed to develop Liberty from west to east in two phases over a five-year

period. During the second phase, temporary barricades would be erected in two locations

and kept in place, respectively, until construction of the Liberty infrastructure was 90%

complete and until the development of Territory was 90% complete. The agreement also

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required Zweber to defend or indemnify against any of his own claims against the county

or township.

Rather than proceeding with the approved Liberty development, Zweber applied to

Scott County for a proposed re-subdivision, which would create nine lots off a cul-de-

sac in Territory and incorporate the double cul-de-sac design initially proposed for

Liberty. The county board denied the re-subdivision on the ground that it was not

consistent with transportation standards outlined by county ordinance. Zweber appealed

by certiorari to this court, which reversed and remanded for re-subdivision approval.

Zweber v. Scott Cty. Bd. of Commr’s, No. A09-1990, 2010 WL 2733275 (Minn. App.

July 13, 2010).

Following this court’s decision, the county and Zweber continued to negotiate a

revised development plan for Liberty. But in September 2012, Zweber also sought

mandamus relief in district court, alleging that the conditions imposed with respect to his

preliminary plat in 2006 amounted to an unconstitutional taking of property without just

compensation under the United States and Minnesota Constitutions and 42 U.S.C. §1983

(2006). In January 2013, over Zweber’s objection, the county board approved a revised

development plan. The next month, Zweber’s lender served him with a foreclosure

notice regarding the property.

In August 2013, Zweber filed an amended complaint and petition, realleging his

taking claim and also asserting an equal-protection claim, alleging that he had received

disparate treatment from that received by Laurent, a similarly situated developer, who

had obtained a substantial construction credit for road work and built numerous cul-de-

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sacs in Territory. Zweber sought an order for condemnation proceedings, damages, and

a declaratory judgment that he was not required to indemnify against his claims against

the county or township under the Master Development Agreement.

Both parties moved for summary judgment. The township and the county

asserted, among other issues, that the district court lacked subject-matter jurisdiction

over Zweber’s claims because they related to quasi-judicial decisionmaking and should

therefore have been asserted by certiorari appeal to this court. They also sought

dismissal of Zweber’s claims against the township on the ground that the county was the

final decisionmaker regarding plat approval, as well as a judgment declaring that the

Master Development Agreement required Zweber to indemnify.

The district court issued two partial judgments. In the first partial judgment, the

district court issued an underlying order concluding that it had subject-matter

jurisdiction to address Zweber’s constitutional arguments and denied summary judgment

on both parties’ claims. The district court also dismissed Zweber’s claim for mandamus

relief and denied the county’s and township’s motion to dismiss the township as a party.

The second partial judgment declared that the claim-waiver-and-indemnity provision in

the Master Development Agreement did not apply, so that Zweber was not required to

indemnify the county and township for his claims. The county and township appeal.1

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By order, a special-term panel of this court limited the scope of this appeal to the
challenge to the district court’s subject-matter jurisdiction raised by appellants.

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DECISION

The county and the township allege that the district court erred by concluding, in

denying summary judgment, that it had subject-matter jurisdiction over Zweber’s

constitutional claims. This court reviews the district court’s denial of summary judgment

de novo “to determine whether genuine issues of material fact exist, and whether the

district court correctly applied the law.” Cnty. of Wash. v. City of Oak Park Heights, 818

N.W.2d 533, 538 (Minn. 2012) (quotation omitted).

Subject-matter jurisdiction involves the court’s authority to hear the type of

dispute and grant the type of relief sought. Seehus v. Bor-Son Constr., Inc., 783 N.W.2d

144, 147 (Minn. 2010). Without subject-matter jurisdiction, a court must dismiss a claim.

See Tischer v. Hous. & Redev. Auth. of Cambridge, 693 N.W.2d 426, 427 (Minn. 2005)

(holding that the district court erred by failing to dismiss a claim for lack of subject-

matter jurisdiction). The existence of subject-matter jurisdiction presents an issue of law,

which we review de novo. Id. at 428.

“If a writ of certiorari filed under Minn. Stat. ch. 606 with the court of appeals is

the exclusive method by which to challenge a municipality’s decision, then the district

court lacks subject-matter jurisdiction to hear the case.” Cnty. of Wash., 818 N.W.2d at

538. And if a litigant aggrieved by a decision fails to obtain a timely writ of certiorari,

that litigant is not entitled to review on the merits of the challenge by way of some other

remedy. See id.; see Minn. Stat. § 606.01 (2014) (providing that a party must apply to

the court of appeals for a writ of certiorari “within 60 days after the party applying for

such writ shall have received due notice of the proceeding sought to be reviewed”).

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Absent a statute expressly authorizing judicial review, “[w]hen the underlying

basis of [a] claim requires a review of a municipality’s quasi-judicial decision to

determine its validity, the exclusive method of review is by certiorari under chapter 606.”

Cnty. of Wash., 818 N.W.2d at 539–40, 542. The certiorari process comports with

fundamental separation-of-power principles and provides an appropriate method to limit

and coordinate judicial review of an executive body’s quasi-judicial decisions. Dietz v.

Dodge Cnty., 487 N.W.2d 237, 239 (Minn. 1992). In contrast, a municipality’s

legislative decisions, which “affect the rights of the public generally,” are not subject to

certiorari review and must be challenged initially in district court. Cnty. of Wash., 818

N.W.2d at 539 (quotation omitted).

To assist in determining whether a decision is quasi-judicial, reviewable only on

certiorari to this court, or legislative, reviewable de novo in the district court, the

Minnesota Supreme Court has articulated “three indicia of quasi-judicial actions.” Minn.

Ctr. for Envtl. Advocacy v. Metro. Council, 587 N.W.2d 838, 842 (Minn. 1999). Under

those parameters, quasi-judicial decisionmaking generally involves: (1) investigating a

disputed claim and weighing evidentiary facts; (2) applying those facts to a prescribed

standard; and (3) making a binding decision regarding the disputed claim. Id.

Zweber asserts that his constitutional-taking and equal-protection claims were not

the subject of quasi-judicial decisionmaking because the unconstitutional imposition of

conditions on his preliminary plat involved neither the weighing of evidentiary facts nor

applying facts to a prescribed standard. Cf. id. “The denial or approval of a preliminary

plat application is a quasi-judicial administrative decision that we review to determine

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whether the decision is unreasonable, arbitrary, or capricious.” Hurrle v. Cnty. of

Sherburne, 594 N.W.2d 246, 249 (Minn. App. 1999); see also PTL, LLC v. Chisago

Cnty. Bd. of Commr’s, 656 N.W.2d 567, 576 (Minn. App. 2003) (addressing county

board’s plat-denial decision on certiorari review). In addressing Zweber’s application,

the county board considered county-ordinance standards relating to the imposition of

conditions necessary to protect public health, safety, and welfare. See Scott County,

Minn., Land Subdivision Ordinance No. 7, § 4-2-1(13) (2011) (stating that a county

board may impose conditions “it considers necessary” under those standards in granting a

preliminary plat application). And it weighed evidentiary facts in making its decision.

Therefore, the approval of Zweber’s preliminary plat, with conditions, involved quasi-

judicial decisionmaking.

While recognizing that approval of the preliminary plat was a quasi-judicial

decision, the district court concluded that Zweber’s constitutional claims lay outside the

scope of certiorari review and were therefore properly raised in district court. In

reviewing that decision, we examine the substantive nature of Zweber’s claims and their

relationship to the quasi-judicial determination of preliminary plat approval. See Willis v.

Cnty. of Sherburne, 555 N.W.2d 277, 280–83 (Minn. 1996) (considering whether

certiorari review was the exclusive method for reviewing an employment-termination

decision, setting forth inquiry of examining the underlying claim and assessing whether

its outcome depended on the validity of the municipality’s quasi-judicial decision).

Under this standard, we have held that a district court lacked subject-matter jurisdiction

to address a challenge to a city’s quasi-judicial decision to demolish a building as a

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nuisance, even though the building’s owner had characterized the claim as one for inverse

condemnation. See City of Minneapolis v. Meldahl, 607 N.W.2d 168, 171–72 (Minn.

App. 2000). We concluded in Meldahl that “[t]he takings claim . . . is not separate and

distinct from the city’s quasi-judicial decision to demolish the structure, because an

inquiry into the facts surrounding the takings claim would involve an inquiry into the

city’s decision to demolish the structure. In such a case, jurisdiction is by writ of

certiorari alone.” Id. at 172.

We conclude that here, as in Meldahl, Zweber’s constitutional claims are not

“separate and distinct” from the quasi-judicial decision to approve the plat with

conditions and that “an inquiry into the facts surrounding [those] claim[s] would involve

an inquiry into” that decision. Id. Addressing Zweber’s constitutional-taking and equal-

protection arguments would require analysis of the reasoning behind the phased-

development and barricade conditions imposed as part of the preliminary plat-approval

decision. Stated another way, Zweber’s constitutional claims could not stand alone

without reference to the preliminary-plat-approval decision, which is a proper subject for

certiorari review. See id. Therefore, because Zweber’s constitutional claims are not

distinct from the 2006 preliminary-plat-approval decision and cannot be addressed

without examining the facts considered in that decision, he was required to assert those

claims by way of certiorari appeal, rather than before the district court. The fact that

Zweber now asserts those claims through a federal civil-rights statute does not change

our resolution of this issue. See, e.g., Briggs v. City of Rolling Hills Estates, 47 Cal. Rptr.

2d 29, 33–35 (Cal. Ct. App. 1995) (holding that failure to seek judicial review, by way of

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designated mandamus procedures, of city’s decision imposing conditions on home

addition precluded independent section 1983 action for damages).

We recognize, as did the district court, that certiorari is not the appropriate remedy

to review most zoning decisions, and district-court actions for declaratory judgment,

injunctive relief, or mandamus are appropriate to challenge those decisions. See, e.g.,

Honn v. City of Coon Rapids, 313 N.W.2d 409, 414 (Minn. 1981) (concluding that

certiorari was not the proper procedure to address a city’s rezoning decision because

“rezoning involves a legislative determination”); Mendota Golf, LLP v. City of Mendota

Heights, 708 N.W.2d 162, 179 (Minn. 2006) (noting a declaratory-judgment action as

appropriate to review a city’s action denying a comprehensive-plan amendment). And a

constitutional issue that could not have been addressed in an administrative body is

appropriate for district-court resolution. Neeland v. Clearwater Mem’l Hosp., 257

N.W.2d 366, 368 (Minn. 1977). But approval of a preliminary plat is a quasi-judicial

decision, Hurrle, 594 N.W.2d at 249, and Zweber has failed to articulate reasons why his

related constitutional claims could not have been addressed in a certiorari challenge to

that decision. See Meldahl, 607 N.W.2d at 172; see also Huygen v. Plums Enters., 355

N.W.2d 149, 153 (Minn. App. 1984) (addressing challenge to human rights commission’s

order under the Minnesota Administrative Procedure Act, Minn. Stat. §§ 14.001-.69

(1982), which allow reversal if agency’s actions violate constitutional provisions, even

though that act does not apply to municipal agencies).

Zweber argues that, even if preliminary approval of his plat with conditions may

have been reasonable under statutory provisions, it could still have violated his

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constitutional rights. Yet even if such an argument could be maintained, he has

acknowledged that, in 2006, he was aware of the conditions imposed on the preliminary-

plat approval that formed the basis for his constitutional claims. And at that time, he

sought re-subdivision rather than challenging the preliminary plat’s conditions. Cf.

Crystal Green v. City of Crystal, 421 N.W.2d 393, 394–95 (Minn. App. 1988)

(concluding that a developer who failed to show duress or coercion on the part of a

municipality was precluded from asserting an inverse-condemnation action challenging a

statutory dedication requirement after a plat was approved and filed), review denied

(Minn. May 25, 1988). We conclude that, under the circumstances of this case, the

district court lacked subject-matter jurisdiction to address Zweber’s constitutional claims

and erred by denying summary judgment on that issue.

Reversed.

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