Ellis Olkon, et al., Appellants,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0564

Ellis Olkon, et al.,
Appellants,

vs.

City of Medina,
Respondent.

Filed December 10, 2018
Affirmed
Reyes, Judge

Hennepin County District Court
File No. 27-CV-17-5890

Thomas W. Wexler, Edina, Minnesota (for appellants)

George C. Hoff, Justin L. Templin , Hoff Barry, P.A., Eden Prair ie, Minnesota (for
respondent)

Considered and decided by Larkin, Presiding Judge; Reilly, Jud ge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
Appellants Ellis and Nancy Olkon (the Olkons) contend that the district court erred
by granting summary judgment in favor of respondent city of Med ina (the city), arguing
that (1) the city’s zoning ordinance is an invalid exercise of police power; (2) the ordinance

2
violates their equal-protection rights; (3) the city is in breach of contract; and (4) the district
court abused its discretion in its discovery order. We affirm.
FACTS
The Olkons live on an approximatel y 21-acre parcel in the city. The Olkons want
to subdivide their property into two parcels in order to maximize their profit, as Ms. Olkon
is a paraplegic and is in need of costly long-term care.
The city is divided into zoning districts, one of which is the rural residential district
where the Olkons’ property is located. In 1997, the city adopted Ordinance No. 296, which
made changes to previous lot area, lot width, and setback requi rements in the rural
residential zone. The ordinance amended Medina City Code § 826 .25, subd. 2(a), to
require that lots in the rural residential district have five contiguous acres of suitable septic
soil. This furthered the city’s goal to obtain a maximum avera ge density in the rural
residential district of one unit per ten acres. The city’s comprehensive plan provides a goal
of protecting the city’s rural c haracter and natural development, as it has a large network
of wetlands and lakes that affect the developable areas in the city.
In 2016, the Olkons made a request to the city for both a varia nce and approval to
subdivide their property. Their property contains approximatel y 1.3 contiguous acres of
suitable soil on one proposed lot, and 1.5 contiguous acres of suitable soil on the other
proposed lot. In making their requests, they argued that the c ity has granted other
variances, the city promised that they could subdivide their pr operty, and financial
difficulties justified a deviation. The city first denied the variance request because (1) it
involved a substantial deviation from the minimum-lot-size requ irement for contiguous

3
acres of suitable soils; (2) the Olkons did not establish pract ical difficulties in complying
with the ordinance; (3) the Olkons did not establish that a particular hardship exists on the
property; and (4) no variance is necessary for the property to be used in a reasonable
manner. Next, the city consider ed and denied the Olkons’ reque s t f o r t h e p r o p o s e d
subdivision because (1) the proposed lots do not meet minimum-l ot-size and setback
r e q u i r e m e n t s ; ( 2 ) t h e p r o p o s e d l o t s a r e i n c o n s i s t e n t w i t h t h e comprehensive-plan
objectives related to density and lot size; and (3) one of the proposed lots does not meet
lot-width requirements.
The Olkons sued the city in dist rict court, alleging that the o rdinance denied their
rights to due process and equal protection, the city was in bre ach of contract, and the
ordinance is an invalid exercise of police powers. The breach-of-contract claim arose from
the Olkons’ grant of an easement in 1988 to their neighboring l andowners, which they
claim they granted in exchange for the city’s promise to allow them to subdivide their
property. Both parties moved for summary judgment. The district court granted summary
judgment in favor of the city. This appeal follows.
D E C I S I O N
Summary judgment is proper when there is no genuine issue as to any material fact
and the moving party is entitled to judgment as a matter of law . Minn. R. Civ. P 56.01.
“We review the grant of summary judgment de novo to determine ‘ whether there are
genuine issues of material fact and whether the district court erred in its application of the
law.’” Montemayor v. Sebright Prods., Inc., 898 N.W.2d 623, 628 (Minn. 2017) (quoting
Stringer v. Minn. Vikings Football Club, LLC, 705 N.W.2d 746, 754 (Minn. 2005)). “On

4
appeal, the reviewing court must view 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) (citation omitted).
I. The city did not exceed its statutory land-use powers when it enacted the zoning
ordinance.

The Olkons argue that the city violated its police power by establishing a minimum
lot size based upon an arbitrary septic-soil requirement that l acks any substantial
relationship to public health, safety, or welfare. We are not persuaded.
A municipality has authority to en act ordinances adopting zonin g and subdivision
regulations through Minn. Stat. §§ 462.357, subd. 1, .358, subd. 1a (2018). A municipality
may, by ordinance, adopt subdivi sion regulations that establish standards, requirements,
and procedures for the review an d approval or disapproval of su bdivisions to protect and
promote the public health, safety, and general welfare. Minn. Stat. § 462.358, subd. 1a.
The city has the authority to regulate the density and distribu tion of population and water
supply conservation. Minn. Stat. §462.357, subd. 1.
A legislative body such as a city or municipality has broad dis cretion in legislative
matters. Honn v. City of Coon Rapids , 313 N.W.2d 409, 415 (Minn. 1981). Before the
exercise of police power can be determined unconstitutional, it must be found that the
legislative body has acted arb itrarily or unreasonably and that there is no substantial
relationship to public health, sa fety, morals, or general welfa re. Freeborn County v.
Claussen, 203 N.W.2d 323, 326 (Minn. 1972) (citing Naegele Outdoor Advertising Co. v.
Village of Minnetonka , 162 N.W.2d 206 (Minn. 1968)). When the reasonableness of a

5
zoning ordinance is debatable or when opinions may differ as to the desirability of a
restriction it imposes, courts a re not to interfere with legisl ative discretion. Id.; accord
Kiges v. City of St. Paul, 62 N.W.2d 363, 374 (Minn. 1953) (stating if question of whether
ordinance is an unreasonable or arbitrary exercise of police po wer is fairly debatable,
ordinance must be upheld as valid).
The Olkons contend that five acres of suitable soil is not nece s s a r y f o r a s e p t i c
mound and that it is possible to safely build a septic mound wi th the 1.3 and 1.5 acres of
suitable septic soil that they have. But the city does not contend that five acres of suitable
septic soil is a requirement to safely build a septic system. Rather, it has stated that the
suitable septic-soil requirement is related to the public healt h, safety, morals, or general
welfare because it helps the city achieve its average density g oal of one unit per ten acres
in the rural residential district, preserves open areas, prevents deterioration of wetlands and
lakes,1 and maintains the rural character of the city. The record doe s not indicate that the
city has acted arbitrarily or unreasonably, and therefore, we will not interfere with the city’s
broad legislative discretion.

1 The Olkons’ reply brief raises a new theory as to why the city is not authorized to enact
t h i s o r d i n a n c e , w h i c h i s t h a t t h e W e t l a n d C o n s e r v a t i o n A c t a n d related Minnesota
Department of Natural Resources rules have preempted the area of wetland protection. But
a party may not obtain review by raising the same general issue litigated at the district court
but under a different theory. Thiele v. Stich , 425 N.W.2d 580, 582 (Minn. 1988). The
Olkons did not raise this theory in the district court.

6
II. The ordinance does not violate the Olkons’ right to equal protection.
The Olkons argue that the minimum-lot-size requirement of the ordinance is facially
invalid and violates the Equal Protection Clause of the Minneso ta Constitution. We are
not persuaded.
This court reviews an equal- protection claim de novo. Thul v. State, 657 N.W.2d
611, 616 (Minn. App. 2003), review denied (Minn. May 28, 2003). “A facial equal-
protection challenge alleges that the statute creates at least two classes of individuals,
which are treated differently under the statute, and that this difference in treatment cannot
be justified.” Matter of Griepentrog, 888 N.W.2d 478, 491 (Minn. App. 2016) (citing In
re McCannel, 301 N.W.2d 910, 916 (Minn. 1980 )). The rational-basis standa rd applies
when the constitutional challenge does not involve a suspect cl ass or fundamental right.
Healthstar Home Health, Inc. v. Jesson, 827 N.W.2d 444, 449 (Minn. App. 2012).
To determine whether a zoning ordinance has a rational basis, w e identify whether
a legitimate government purpose exists, then ask whether a rati onal basis exists for the
governmental body to believe tha t the legislation would further the purpose. Thul, 657
N.W.2d at 617 (citing Graham v. Itasca Cty. Planning Comm’n , 601 N.W.2d 461, 465
(Minn. App. 1999)). “The burden of proof is on the opponent of the ordinance.” Id. The
challenged legislation need only be supported by any set of facts either known or that could
reasonably be assumed. Id. (citing Arcadia Dev. Corp. v. City of Bloomington, 552 N.W.2d
281, 289 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996)).
In this section of their brief, the Olkons do not specify what classifications are
created by the statute, they do not argue how they have been tr eated differently, and they

7
fail to analyze how the cases they cite apply to their case. But even assuming the ordinance
does create classifications, the Olkons’s argument fails on the m e r i t s . T h e c i t y h a s a
legitimate governmental purpose i n maintaining the rural charac ter of the community,
preventing deterioration of lak es and wetlands, and achieving t he city’s average-density
goal of one unit per ten acres in the rural residential district. The city has chosen to use the
five-contiguous-acre requirement as a “zoning tool” to implemen t its density goal. This
metric has a rational basis because “the larger acreages help preserve open areas as well as
prevent the deterioration of wetland complexes and lakes.” As the city notes, this approach
allows for “more dense development on drier and flatter land, and less dense development
on wetter or rolling terrain, while still meeting its overall a verage density goals, and
preserving its rural character and more environmentally sensitive areas.” The Olkons have
not met their burden under the ra tional-basis test, and therefo re, their equal-protection
claim fails.
III. The district court properly granted summary judgment on the Olkons’ breach-
of-contract claim.

The Olkons challenge the district court’s grant of summary judg ment on their
breach-of-contract claim, arguing t hat there are a number of fa ct issues to be resolved at
trial. We are not persuaded.
A genuine issue of material fact exists “when reasonable person s might draw
different conclusions from the evidence presented.” DLH Inc. v. Russ, 566 N.W.2d 60, 69
(Minn. 1997). “[T]here is no genuine issue of material fact . . . when the nonmoving party
presents evidence which merely creates a metaphysical doubt as to a factual issue.” Id. at

8
71. For summary judgment, the non moving party may not rely upo n mere averments in
the pleadings or unsupported alleg ations, but must come forward with specific facts to
satisfy its burden. Bebo v. Delander, 632 N.W.2d 732, 737 (Minn. App. 2001).
Contract formation requires an objective manifestation of mutua l assent,
consideration, and a bargain. Cederstrand v. Luth eran Brotherhood, 117 N.W.2d 213,
220-221 (Minn. 1962). Considera tion requires that a contractua l promise be the product
of a bargain, which is a negotiation that results in the voluntary assumption of an obligation
by one party upon condition of an act or forbearance by the other. Id. at 220. Consideration
is essential evidence of the parties’ intent to create a legal obligation and must be adopted
and regarded by the parties as such. Id. at 220.
The only evidence that the Olkons offered of the city’s alleged promise to allow
them to subdivide their property are affidavits from Mr. Olkon and the neighboring
landowner that reference the city’s promise and the “declaratio n of covenants” of the
neighbor’s subdivision, which references the easement that the Olkons eventually granted
in 1988. But the declaration does not reference the promise ma de by the city, nor does it
evidence any authorization on behalf of the city. The Olkons concede that the city-council-
meeting minutes are sparse and do not reflect the city’s promise to the Olkons. They argue,
however, that if there were accurate and complete meeting minutes, they would reflect the
city’s promise. But the party cha llenging summary judgment mus t come forward with
specific facts and cannot rely on unsupported allegations. Bebo, 632 N.W.2d at 737.
Viewing the record in the light most favorable to the Olkons, e ven if city had
promised that the Olkons could s ubdivide their property at some time in the future, there

9
was no consideration given to make this promise legally enforceable. The Olkons contend
that consideration existed between the city and the Olkons because the Olkons granted an
easement to a third party, and the city benefitted from the third party’s subsequent private
development for which the easement was used. But there is no evidence that the city was
a party to this easement contract or that any benefit the city may have incidentally received
was the product of a bargain between the city and the Olkons, n or that it was regarded as
such. The easement was granted to the neighboring landowners, on private property, not
to the city. The city’s alleged promise that the Olkons could subdivide their property at
some point in the future is unsupported by consideration and is n o t l e g a l l y b i n d i n g .
Therefore, the city was entitled to summary judgment on this claim.
IV. The district court did not abuse its discretion in its discovery rulings.
The Olkons argue that the district court abused its discretion when it terminated
discovery prior to the discovery deadline. We disagree.
The district court has broad discretion to issue discovery orders and will be reversed
on appeal only upon an abuse of such discretion. Shetka v. Kueppers, Kueppers, Von Feldt
& Salmen, 454 N.W.2d 916, 921 (Minn. 1990). “It is fundamental that the only objective
of the pretrial discovery rules is to allow a party to obtain all the facts relative to a claim or
defense.” Garrity v. Kemper Motor Sales , 159 N.W.2d 103, 107 (Minn. 1968).
“[I]nformation subject to discovery must, at least, be likely t o lead to relevant admissible
evidence.” Shetka, 454 N.W.2d at 919.
On November 9, 2017, the district court denied the Olkons’ moti on to compel
discovery and closed discovery. On November 13, 2017, the district court ordered that the

10
city could retain an expert witness, the Olkons could depose th e city planner, and that all
other discovery was complete. The district court found that th ere had already been
voluminous discovery exchanges a nd that the Olkons had not poin ted to any specific
identifiable and crucial omissions in the city’s compliance wit h discovery requests. By
this time, the city had responded to the Olkons’ discovery requests regarding how the five-
acre suitable-soil requirement related to achieving its density objectives by pointing to the
ordinance and comprehensive plan.
The Olkons also sought to depose surviving members of the city council who “may”
remember the city’s promise, but fail to point to any information that city-council members
have that is likely to lead to admissible evidence. In light o f the voluminous discovery
exchanges and our conclusion tha t the Olkons’ breach-of-contrac t claim fails for lack of
consideration, the district cour t’s decision to terminate disco very was not an abuse of its
broad discretion.
Affirmed.