Mark R. Zweber, Appellant,

This opinion will be unpublished and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
A18-1607

Mark R. Zweber,
Appellant,

vs.

Credit River Township, et al.,
Respondents.

Filed June 10, 2019
Affirmed
Rodenberg, Judge

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

Thomas Fafinski, Nathan Nelson, Steven V. Rose, Virtus Law, PLL C, Minneapolis,
Minnesota (for appellant)

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

Considered and decided by Brat vold, Presiding Judge; Rodenberg , Judge; and
Reilly, Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Mark Zweber appeals from the district court’s order and judgment
dismissing his regulatory-taking and equal-protection claims fo llowing a court trial after
remand from the Minnesota Supreme Court. We affirm.

2
FACTS
This appeal arises from a more-t han-a-decade-long contention b etween appellant
and respondents Credit River To wnship and Scott County concerni ng approximately 100
acres of undeveloped land. This is the fourth appeal arising from the dispute. Because the
facts are extensively discusse d in earlier decisions, we addres s them only briefly. See
Zweber v. Credit River Township, 882 N.W.2d 605 (Minn. 2016); Zweber v. Credit River
Township, No. A14-0893, 2015 WL 1128985, at *2 (Minn. App. Mar. 16, 201 5), rev’d,
882 N.W.2d 605 (Minn. 2016); Zweber v. Scott Cty. Bd. of Comm’rs, No. A09-1990, 2010
WL 2733275, at *1 (Minn. App. July 13, 2010).
In 2001, appellant purchased the subject land in Credit River T ownship, Scott
County. He paid $1,050,000 for it. He first intended to devel op a golf course, but when
the golf-course market became unfavorable, he sought to subdivide the land for residential
single-family homes because the real-estate market was “red hot .” In 2003, appellant
contacted the county to develop a plan for the subdivision. Appellant and county officials
discussed where to locate roads within the subdivision and how to stem the flow of traffic
into adjoining neighborhoods. I n 2006, appellant submitted his preliminary plat
application for his home-site development, Liberty Creek, to the county.
The property next to appellant’s land was owned by Laurent Comp any. This land
was also being developed for residential-home use and was ident ified as the “Territory”
development. After appellant sub mitted his proposal to develop Liberty Creek, Laurent
contacted the county with criticisms of the Liberty Creek plan. Laurent demanded that

3
roads be moved, that appellant develop the property from west to east, and that a connection
from appellant’s property to Terr itory be eliminated. Laurent also complained that
appellant’s development would c ause a substantial increase in t raffic to the detriment of
Territory.
Shortly thereafter, the county informed appellant that he would have to change a
road connection to ease the flow of traffic. Months later, the county planning commission
recommended approval of appellant’s amended plat on the condition that his development
occur in phases. The county la ter imposed another condition th at required appellant to
construct a barricade between Liberty Creek and Territory that was to remain in place until
Liberty Creek was 90% complete.
The county eventually approved appellant’s proposed development plan, but
conditioned approval on appellant complying with the barricading and phasing conditions.
Appellant did not proceed with the Liberty Creek development. Instead, he proposed a re-
subdivision called Estates of Liberty Creek. The county denied that proposal, and appellant
challenged the denial by a certiorari appeal. Zweber, No. A09-1990, 2010 WL 2733275,
at *8 (reversing and remanding board’s denial of appellant’s su bdivision application
because the proposal met all app licable and enforceable standar ds in the county’s
ordinance). Following that appe al, appellant and respondents d iscussed various plans of
moving forward until the negotiations reached an impasse.
In 2012, appellant sought mandamu s relief in district court, al leging that the
restrictions imposed by the county as conditions of his Liberty Creek subdivision amounted

4
to an unconstitutional taking of property without just compensation under the United States
and Minnesota Constitutions and 42 U.S.C. § 1983. Appellant am ended his complaint in
2013 and sought money damages, claiming that (1) the county too k his property without
just compensation by placing conditions on the approval of his plat application; and (2) the
county’s treatment of him from 2006 to 2012, the period during which it considered his
various applications, violated his equal-protection rights. Zweber, 882 N.W.2d at 607.
Appellant also sought a writ of m andamus ordering the county to commence inverse-
condemnation proceedings to compensate him for the taking. Id.
Following the district court’s denial of respondents’ summary-j udgment motion,
which allowed appell ant’s constitutional claims to proceed in d istrict court, respondents
perfected an interlocutory appeal, arguing that the district court erred in denying summary
judgment and in concluding that it had subject-matter jurisdict ion over appellant’s
constitutional claims. Those app eals are explained further in both Zweber opinions. See
Zweber, 882 N.W.2d at 607; Zweber, A14-0893, 2015 WL 1128985, at *2 (reversing
district court’s determination that it had subject-matter juris diction to address appellant’s
constitutional claims because those claims were not separate and distinct, and because plat
approval subject to conditions is a quasi-judicial action, revi ewable only by certiorari
appeal within 60 days).
The Minnesota Supreme Court granted review and held that a dist rict court has
subject-matter jurisdiction over a property owner’s takings and equal-protection claims
under 42 U.S.C. § 1983, when neither claim requires an examinat ion into the validity of

5
any quasi-judicial decisions made by a local government entity. Zweber, 882 N.W.2d at
606. The supreme court remanded the case to the district court for trial.
A three-day court trial was held in October 2017. In a written order after trial, the
district court dismissed appellant ’s claims. Because responden ts never took physical
possession of appellant’s land, the district court analyzed appellant’s claim under the Penn
Central regulatory-taking analysis. See Penn Cent. Transp. Co. v. City of New York , 438
U.S. 104, 124, 98 S. Ct. 2646, 2659 (1978) (rejecting use of a set formula and stating that
whether a regulatory taking has occurred depends on three facto rs: the economic impact
of the regulation, reasonable inve stment-backed expectations, a nd the character of the
governmental action).
The district court found that appellant had failed to show that the conditions imposed
on his proposed subdivision caused the complained-of losses, an d further found that
appellant failed to prove that he was deprived of all reasonabl e use of the property.
Therefore, the first Penn Central factor weighed against appellant’s takings claim. As to
the second factor, the district court found that respondents re peatedly interfered with
appellant’s investment-backed expectations and that, as a resul t, appellant was prevented
from developing the project as he desired. As to the third fac tor, the character of the
governmental action, the distric t court found that respondents “targeted” appellant’s
property and imposed Laurent’s demands without examining their legitimacy or purpose.
The district court concluded that, because “the connection between [respondents’] actions
and the property’s loss in value is too attenuated,” appellant’s regulatory-takings claim fail.

6
Similar to its analysis of appellant’s takings claim, the district court also determined
that appellant’s equal-protection claim failed because appellan t “failed to prove he was
similarly situated to other developers,” and failed to “connect h i s d a m a g e s t o
[respondents’] conduct.”
After trial, appellant moved the district court for amended fin dings of fact,
conclusions of law and order and, in the alternative, for a new trial. Along with other
issues, appellant asserted that the district court erred by fai ling to consider his takings
claims under the McShane analysis for claims of taking that are based on the existence of
a governmental enterprise, and that the district court also err ed when determining the
economic impact of the taking. The district court denied appellant’s posttrial motions.
This appeal followed.
D E C I S I O N
Appellant argues that the distric t court erred by determining t hat respondents’
demands for revised design, pha sing, and barricading did not am ount to a compensable
regulatory taking and that it erred in rejecting appellant’s equal-protection claim. In their
cross-appeal, respondents assert that, because appellant knowingly and voluntarily signed
a master development agreement (MDA) after receiving advice and input from his
professional team, which included an attorney, he waived his constitutional claims.1

1 At oral argument, respondents agreed that we need reach the waiver issue only if appellant
prevails in his appeal. Because we resolve this appeal based o n our conclusion that the
district court did not clearly err and did not abuse its discre tion concerning appellant’s
takings and equal-protection claims, we do not address respondents’ additional argument.

7
“In an appeal from a bench trial, we do not reconcile conflicting evidence. We give
the district court’s factual findings great deference and do not set them aside unless clearly
erroneous.” Porch v. General Motors Acceptance Corp. , 642 N.W.2d 473, 477 (Minn.
App. 2002) (citation omitted), review denied (Minn. Jun. 26, 2002). A district court’s
findings of fact may be set aside only if a reviewing court, on the entire evidence, is left
with the definite and firm conviction that a mistake has been m ade. Minn. Pub. Interest
Research Grp. v. White Bear Rod & Gun Club , 257 N.W2d 762, 782-83 (Minn. 1997).
When reviewing mixed questions of law and fact, we correct erroneous applications of law,
but accord the district court discretion in its ultimate conclu sions, and we review those
conclusions for abuse of discretion. Porch, 642 N.W.2d at 477. We do not defer to the
district court’s legal analysis. Id.
I. Because the record supports the district court’s factual fin ding that appellant
failed to prove that respondents’ conditions caused the complai ned-of
property-value decrease, the dist rict court did not reversibly err by
determining that a regulatory taking had not occurred.

Appellant argues that the distr ict court erred both by failing to apply the McShane
enterprise analysis to his claims and by determining that respo ndents’ regulations did not
amount to a compensable regulatory taking. Respondents argue t hat appellant failed to
preserve the issue of consideration of the McShane analysis because it was not raised in his
posttrial brief and was argued only in appellant’s posttrial motions.
Whether a governmental entity’s action constitutes a taking is a question of law that
is reviewed de novo. Wensmann Realty, Inc. v. City of Eagan, 734 N.W.2d 623, 631 (Minn.
2007). The Minnesota Constitution provides that “[p]rivate pro perty shall not be taken,

8
destroyed or damaged for public use without just compensation.” Minn. Const. art. I, § 13.
Under the Fifth Amendment of t he United States Constitution, th e government takes
property when it ousts an owner from his property or when its regulation of the property is
“so onerous that its effect is tantamount to a direct appropria tion or ouster.” Lingle v.
Chevron U.S.A. Inc. , 544 U.S. 528, 537, 125 S. Ct. 2074, 2081 (2005). Through a
regulatory taking, the governmen t need not directly appropriate or physically invade
private property. Wensmann, 734 N.W.2d at 632 (citing Pa. Coal Co. v. Mahon, 260 U.S.
393, 414-15, 43 S. Ct. 158, 159-60 (1922)). The Supreme Court has rejected using a “set
formula for determining when justice and fairness require that economic injuries caused by
public action be compensated by the government” and the determi nation of whether a
taking has occurred is highly fact -specific, depending on the p articular circumstances
underlying each case. Wensmann, 734 N.W.2d at 632 (quotation and citation omitted).
Because the takings clause in the Minnesota Constitution is com parable to that of
the United States Constitution, the Minnesota Supreme Court often relies on United States
Supreme Court decisions—and on Penn Central, in particular—in interpreting
Minnesota’s takings clause. Id. at 631-32. In analyzing regulatory-takings claims under
the Minnesota Constitution, Minnesota courts have often applied and balanced the factors
established by the Supreme Court in Penn Central : ( 1 ) t h e e c o n o m i c i m p a c t o f t h e
regulation on the claimant; (2) the extent to which the regulat ion interfered with distinct
investment-backed expectations; and (3) the character of the go vernmental action. See

9
DeCook v. Rochester Int’ l Airport Joint Zoning Bd. , 796 N.W.2d 299, 304 (Minn. 2011)
(citing Penn Cent. Transp. Co., 438 U.S. 104, 98 S. Ct. 2646).
In Minnesota, Penn Central is not the only test used to decide regulatory-takings
cases. In regulatory-taking-zon ing cases, Minnesota courts emp loy one of two tests to
review a regulation that interferes with private property—the e nterprise test or the
arbitration test. DeCook, 796 N.W.2d at 306; McShane v. City of Faribault, 292 N.W.2d
253, 257-58 (Minn. 1980); Concept Props., LLP v. City of Minnetrista , 694 N.W.2d 804,
822-23 (Minn. App. 2005), review denied (Min. Jul. 19, 2005); cf. Johnson v. City of
Minneapolis, 667 N.W.2d 109, 115-16 (Minn. 2003) (declining to apply Penn Central
analysis to takings claims where facts of the case presented a unique situation, and
concluding that, under the Minne sota Constitution, cumulative e ffect of city’s actions
substantially interfered with appellants’ property rights).
The enterprise analysis is trigge red only when a specific gover nmental enterprise
takes an effective easement on pr ivate property, causing a subs tantial diminution in the
property’s value. Concept Props., 694 N.W.2d at 822-23 (citing Thompson v. City of Red
Wing, 455 N.W.2d 512, 517 (Minn. App. 1990), review denied (Minn. June 6, 1990)). In
both McShane and DeCook, the supreme court concluded that a regulatory taking had
occurred where the regulations i mposed on the subject parcel of land were for the sole
purpose of a governmental enterprise—an airport. See DeCook , 796 N.W.2d at 306;
McShane, 292 N.W.2d at 258. In those ca ses, the Minnesota Supreme Cou rt concluded
that a regulatory taking occurre d because the ordinances caused a substantial diminution

10
in the value of private property. The McShane/DeCook analysis has been applied only in
contexts where the complained-of regulation is one intended to benefit a governmental
enterprise. This is not such a case.
Here, appellant’s argument is that the district court should h ave applied the
McShane enterprise-takings analysis because Laurent and th e county were engaged in a
“joint enterprise” and the conditions imposed by the county benefitted that enterprise.
Appellant did not assert that McShane applied until after trial when he moved the
district court for amended findi ngs and a new trial. Having no t argued the theory of an
enterprise-regulatory taking at trial, and having produced no e vidence at trial to support
such an argument, appellant is foreclosed from now adopting that theory.2 See Minn. Mut.
Fire & Cas. Co. v. Retrum , 456 N.W.2d 719, 723 (Minn. App. 1990); Ness v. Ylvisaker,
412 N.W2d 769, 769-70 (Minn. App. 1987). We have stated that “ a party may not raise
an issue for the first time in a new-trial motion.” In re Welfare of Child of T.D., 731 N.W.2d
548, 553 (Minn. App. 2007) (concluding that challenge to judici al notice was raised too
late, where party knew about motion but did not contest the judicial-notice issue until after

2 Appellant seems to argue that, because he brought his takings claims under both the U.S.
and the Minnesota Constitutions, the district court should have analyzed his claims under
McShane because the Minnesota Constitution provides broader protection. But appellant’s
generalized assertion of takings claims under the Minnesota Con stitution did not
adequately preserve his more specific McShane argument. See Antonson v. Ekvall , 186
N.W.2d 187, 189 (Minn. 1971) (u pholding district court’s denial of a new-trial motion
based on legal theory that had not been raised at an earlier st age, where, although general
pleadings could have possibly made a claim based on an ejectmen t theory, complaint did
not contain any language that woul d have alerted anyone to ejec tment claim and plaintiff
did not present the argument during trial).

11
trial) (citing Thiele v. Stich , 425 N.W.2d 580, 582 (Minn . 1988)). We conclude that
appellant failed to preserve this issue.
But even if we were to assume that the enterprise argument was preserved by a
reference to DeCook in appellant’s posttrial briefing, the record supports the district court’s
posttrial reasoning that appellant’s failure to show a connection between the governmental
regulation and his claimed damages would defeat a McShane argument in any event. See
DeCook, 796 N.W.2d at 307; McShane, 292 N.W.2d at, 257-58 (explaining that the
ordinances at issue must have caused the substantial diminution in property value in order
for there to be a compensable regulatory taking under the enterprise-taking theory).
The expert who testified for a ppellant at trial prepared three valuation reports and
testified concerning those reports. But none of those reports analyze or consider the effect
that any of the conditions imposed by the county have on the property’s value. Each is an
appraisal of the property at a specified point in time. None o pine concerning the
connection, if any, between the claimed damages and the county-imposed conditions. On
cross-examination, appellant’s valuation expert testified that he had “never been involved
in evaluating damages in a regulatory takings case” and that his opinions did not concern
any regulatory-taking issues. He testified further that he was not provided at the time of
his appraisals with the conditions that the county imposed on the preliminary plat plan and
that he had never heard of any conditions until his deposition. He testified that he did not
evaluate the economic impact of those conditions in preparing his appraisal reports.

12
Appellant’s trial proof was limited to evidence of the differen ce between the
expert’s opinion of the market value of appellant’s property before and after the conditions.
The expert’s market-value opinions were that the property was w orth $5,269,300 on
September 5, 2006; $2,438,900 on October 13, 2009; and $2,347,900 on October 20, 2011.
But the district court found as a fact that these values failed to demonstrate that the
differences in the value of the property over time were caused by the conditions imposed.
In order to proceed under McShane, appellant needed to show that the conditions were
related to his claimed damages. And the record supports the di strict court’s finding that
appellant failed to connect the conditions with the decrease in the property’s value.
Because appellant waived asserting McShane at trial and because the record
supports the district court’s finding that appellant failed to prove that the conditions caused
his claimed damages, the district court properly analyzed appel lant’s claims under Penn
Central and not under McShane/DeCook.
Concerning the district court’s analysis of the Penn Central factors, appellant takes
issue with only the district court’s analysis of the first fact or. He argues that the district
court’s analysis was improper because the preponderance of the evidence established that
the conditions imposed by respondents on his development plans caused his property to
suffer a substantial diminution in value.
The first Penn Central factor is the impact of the zoning ordinance on appellant’s
property interests. Interstate Cos., Inc. v. City of Bloomington , 790 N.W.2d 409, 414
(Minn. App. 2010), review granted (Minn. Jan. 26, 2011) and order granting review

13
vacated (Minn. Apr. 27, 2011). “We look first at the economic impact of the city’s denial
of the comprehensive plan amendment.” Wensmann, 734 N.W.2d at 634. The inquiry
under this factor turns in large part, upon the magnitude of a regulation’s economic impact
and the degree to which it inte rferes with legitimate property interests. Id. Where the
government chooses to maintain an existing comprehensive plan designation, courts should
determine whether the government’s decision leaves any reasonable, economically viable
use of the property. Id. at 635.
In determining the economic impact of the conditions, the distr ict court analyzed
both (1) the value before and after the conditions and (2) whether there was any reasonable,
economically viable use of the property left. The district cou rt noted that, although
Wensmann rejected using the fair-market value before and after the regu lation in
determining the economic impact, because appellant had argued t hat this was the correct
approach, it would address the value of appellant’s property before and after the conditions.
Appellant’s argument that the p roper inquiry as to the economi c impact is to
compare the value of the property before and after the conditions appears to be based on a
portion of Wensmann where the supreme court, responding to the parties’ arguments, noted
that “[t]he city argues that the economic impact should be meas ured by comparing the
value of the property as a golf course before and after the den ial of the comprehensive
plan.” Id. at 634. The supreme court rejected that analysis. Id. The court concluded that,
“the most appropriate method in cases like this, where the government chooses to maintain

14
an existing comprehensive plan designation, is to determine whe ther the [regulation or
ordinance] leaves any reasonable, economically viable use of the property.” Id. at 635.
At trial, appellant claimed that he had no reasonable use for t he property because,
after his original plan to construct a golf-course fizzled, he decided that using the land for
farming “wasn’t an option.” App ellant claimed that the land co uld no longer be used for
farming because he “paid too much” for it to be used as farmland. “Farming into perpetuity
at that price is not an option.” But farmland is what the prop erty was when appellant
acquired it. The district court found that appellant “presente d very little evidence on the
[reasonable use] issue” and that there was “some cursory discus sion by [appellant] that
neither a golf course, nor farm, were viable uses for the land” and ultimately concluded
that the evidence at trial showed that reasonable uses of the property remained. The district
court properly analyzed appellant’s regulatory-taking claim, and its findings are supported
by the record.
Moreover, and as with the McShane/DeCook analysis, the district court found as
fact that appellant had failed to prove that the changes in his property’s appraised value
over time were caused by the conditions imposed. The first Penn Central factor considers
whether there has been a substantial diminution in value caused by the regulations. The
record supports the district c ourt’s conclusion that appellant had failed to prove such a
causal connection.
The district court’s determination that appellant’s claim of da mage is based on the
“extraordinary assumption” that all of the lots were fully deve loped and sold in a single

15
transaction and that there is “ no evidence of the property’s va lue with the conditions or
their effect on the property’s value” is supported by the record.
Because the record supports the district court’s findings that appellant failed to show
that he was deprived of all reasonable use of the property and failed to prove that the
decrease in the property’s value over time was caused by the co nditions, the district court
acted within its discretion in c oncluding that appellant had fa iled to demonstrate a
regulatory taking under Penn Central . It also acted within its discretion in denying
appellant’s posttrial motions. See Christie v. Estate of Christie , 911 N.W.2d 833, 838
(Minn. 2018) (appellate courts review a district court’s decision to grant or deny a new trial
for an abuse of discretion, and the district court may grant a new trial where errors of law
occurred at the trial or when the decision is not justified by the evidence or is contrary to
law).
II. Because appellant cannot show that the conditions were attr ibutable to the
alleged disparate treatment, the district court did not reversibly err in denying
appellant’s equal-protection claim.

Appellant also argues that the district court erred when it determined that appellant’s
equal-protection rights were not violated. He contends that “[a]ll developers, regardless of
the size of the development are entitled to have the ordinances applied in the same manner”
and that the record is replete with evidence demonstrating that respondents applied their
ordinances differently.
We review equal-protection claims de novo. Thul v. State, 657 N.W.2d 611, 616
(Minn. App. 2003), review denied (Minn. May 28, 2003). The United States and

16
Minnesota Constitutions guarantee citizens equal protection of the laws. U.S. Const.
amend. XIV, § 1; Minn. Const. art. I, § 2. A zoning ordinance must operate uniformly on
those similarly situated. Nw. Coll. v. City of Arden Hills , 281 N.W.2d 865, 869 (Minn.
1979). As stated, appellate courts review a district court’s decision to grant or deny a new
trial for an abuse of discretion. Christie, 911 N.W.2d at 838.
Generally, in bringing an equal-protection challenge, a person must identify a class
of which he is a member, but the equal-protection clause provides a cause of action for a
class of one. Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 1074
(2000). To prevail in a class-of-one claim, a plaintiff must s how that the government
(1) intentionally treated the plaintiff differently from others who are similarly situated, and
(2) that there is no rational basis for the difference in treatment. Id.
An equal-protection challenge re quires an initial showing that “similarly situated
persons have been treated differently.” State v. Cox, 798 N.W.2d 517, 521 (Minn. 2011)
(quotation omitted). In determining whether persons are similarly situated, the focus is on
“whether they are alike in all relevant respects.” Id. at 522. Appellate courts “routinely
reject equal-protection claims w hen a party cannot establish th a t h e o r s h e i s s i m i l a r l y
situated to those whom they cont end are being treated different ly.” Schatz v. Interfaith
Care Ctr., 811 N.W.2d 643, 656 (Minn. 2012) (quotation omitted).
The district court determined in its first order that, even if appellant were treated
differently than similarly situated developers, “like the regul atory taking claim,
[appellant’s] damages are problematic.” The district court not ed that appellant’s claim

17
“asks this Court to infer that the property’s loss in value is attributable solely to the alleged
disparate treatment.” But it found that appellant’s “own expert’s valuations show that this
decline in value occurred regardless of any action by [respondents].” The record supports
the district court’s conclusion . Appellant’s equal-protection claim fails for the same
reasons as his regulatory takings claims. The record supports the district court’s finding
that appellant failed to show that the county’s conditions caused the decrease in his land’s
value.3
Affirmed.

3 Similarly, in in its order addressing appellant’s motion for am ended findings and a new
trial, the district court determined that appellant’s claims fa il because appellant “failed to
demonstrate that he was similarly situated to any other developer.” But because we agree
with the district court that appellant failed to show that the conditions were attributable to
the alleged disparate treatment, we do not address whether appe llant is similarly situated
to other developers.