Nicollet Plaza, LLC, 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This opinion will be unpublished and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
A18-1864

Nicollet Plaza, LLC,
Appellant,

vs.

Chase Real Estate, Inc.,
Respondent,

City of Burnsville,
Respondent,

KSH Development, LLC,
Respondent.

Filed July 29, 2019
Affirmed
Slieter, Judge

Dakota County District Court
File No. 19HA-CV-17-1764

Wm. Christopher Penwell, Mark Thieroff, Siegel Brill, P.A., Minneapolis, Minnesota (for
appellant)

David A. Davenport, Quin C. Seiler, Winthrop & Weinstine, P.A., Minneapolis, Minnesota
(for respondent Chase Real Estate, Inc.)

John M. Baker, Anna M. Tobin, Greene Espel PLLP, Minneapolis, Minnesota (for
respondent City of Burnsville)

Emeric J. Dwyer, John F. Cameron, Cameron Law Office, CHTD., Minneapolis,
Minnesota (for respondent KSH Development, LLC)

2
Considered and decided by Connolly, Presiding Judge; Halbrooks , Judge; and
Slieter, Judge.
U N P U B L I S H E D O P I N I O N
SLIETER, Judge
Appellant Nicollet Plaza, LLC (NP) appeals from the district cour t’s summary
judgment order dismissing NP’s action (1) seeking a declaration that it reasonably withheld
approval of a development plan created by respondent Chase Real Estate, Inc. (Chase), (2)
seeking a declaration that respondent City of Burnsville (Burnsville) exceeded its zoning
authority by approving Chase’s development plan , and (3) asserting a breach -of-contract
claim. NP also challenges the district court’s denial of its request for a permanent
injunction. Because NP failed to show a genuine issue of material fact that the 2017 plan
is not in substantial accordance with the 2004 plan and failed to show genuine issues of
material fact or errors of law on its alternative claims, we affirm.
FACTS
This appeal involves a dispute over the development of lot 3 in the Nicollet Plaza
development (Nicollet Plaza) in Burnsville. Nicollet Plaza consists of several retail and
residential buildings; NP currently owns several lots in Nicollet Plaza, including a shopping
center. NP purchased its lots from the original developer, Opus Northwest, LLC (Opus),
in 2004. Respondent KSH Development, LLC (KSH) is the current owner of the
undeveloped lot 3. Chase seeks to construct a mixed-use apartment complex on lot 3.
Development of Nicollet Plaza began in the early 2000s. In 2004, Opus purchased
35 lots in Burnsville that would ultimately beco me Nicollet Plaza. In October 2004,

3
Burnsville, Opus, and KSH entered into a development contract/planned-unit-development
agreement (PUD agreement) regar ding lot 3 and surrounding lots. Prior to the PUD
agreement, the Nicollet Plaza lots were zoned under Burnsville’s “Heart of the City -1”
zoning designation. Pursuant to Burnsville’s code, the PUD agreement was intended to
give the parties flexibility in developing Nicollet Plaza by granting the project relief from
the “strict application of required setbacks, yard areas, lot sizes . . . and other performance
standards associated with traditional zoning [] . . . .” Burnsville, Minn., City Cod e
§ 10-27-1 (2010).
The PUD agreement also set forth various plans for the development of Nico llet
Plaza. On lot 3, the PUD agreement called for a four-story mixed-use building with retail
and residential units on the main floor and residential units on the upper floors (2004 plan).
The 2004 plan depicts 249 parking spaces and 192 bedrooms for a ratio of 1 .2 parking
spaces per bedroom.
The PUD agreement also included a provision relating to amendments:
The action or inaction of [Burnsville] shall not constitute a
waiver or amendment to the provisions of this [c]ontract. To
be binding, amendments or waivers shall be in writing, signed
by the parties and approved by written resolution of the City
Council. [Burnsville’s] failure to promptly take legal action to
enforce this Contract shall not be a waiver or release.

Over the years, the PUD agreement was amended seven times. No amendment was signed
by all parties.
In October 2004, Opus also executed a declaration of reciprocal easements,
covenants, conditions, and restrictions (declaration). In addition to providing parking

4
easements and other conditions, the declaration requires Opus to approve any
improvements to lot 3:
No improvements shall be constructed, erected, expanded or
altered on a ny of the Outparcels until the plans for the same
[including site layout, signage, civil engineering drawings
(including finished floor elevations), exterior appearance,
parking and landscaping] have been approved by Declarant,
which approval shall not be unreasonably withheld so long as
such plans shall be substantially in accordance with
Declarant’s project development plans submitted to and
approved by [Burnsville] as part of the planned development
of the Shopping Center.

(Emphasis added and first alteration in original .) NP assumed Opus’s rights under the
declaration in December 2004.
Also in October 2004, Burnsville and KSH entered into a contract for private
redevelopment (TIF agreement) that linked tax-increment-financing opportunities to lot 3
if certain “minimum improvements” were constructed on the lot. The TIF agreement
defined “minimum improvements” as including “owner-occupied condominiums” but also
provided that the TIF agreement c ould be amended by written agreement approved by
Burnsville and KSH. The TIF Agreement was amended several times by KSH and
Burnsville. In April 2017, it was amended to define “[m]inimum [i]mprovements” as “at
least 150 rental housing units with at least 8,000 square feet of commercial space.”
Lastly, also in 2004, Opus entered into a purchase agreement with KSH (Opus-KSH
purchase agreement). The Opus -KSH purchase agreement requires KSH to construct
improvements on lot 3 “in accordance” with the TIF agreement:
[KSH] shall design and construct the [i]mprovements in
accordance with the approved [KSH] Plans. [KSH] shall

5
construct the Improvements in a good and workmanlike
manner, in accordance with all applicable laws and regulations,
including the TIF Agreement.

In April 2018, Opus assigned its rights under the Opus-KSH purchase agreement to NP.
Despite the 2004 plan, lot 3 remained undeveloped. In 2016, Chase sought to
construct a mixed-use building on lot 3 with commercial retail on the main floor and luxury
apartments above. To that end, KSH and Chase entered into a purchase agreement for
lot 3. In 2017, after negotiating with Burnsville, Chase developed a plan for lot 3 (2017
plan) that called for 265 parking spaces and 213 bedrooms , at a ratio of 1.2 spaces per
bedroom. The 2017 plan did not conform to Burnsville’s zoning ordinance because of
issues related to density, parking, building height, and setbacks. Burnsville responded to
these issues by approving an amendment to the PUD agreement that allowed the 2017 plan
to proceed; NP did not sign this amendment.
In April 2017, Chase sent its final plan for lot 3 to NP and requested NP’s approval.
NP refused to approve the 2017 plan and o n May 12, 2017, sued Chase, KSH, and
Burnsville, claiming breach of contract, promissory estoppel, and third-party beneficiary
enforcement rights. NP also sought declaratory relief and a permanent injunction enjoining
Chase from constructing apartments on lot 3.
In response, KSH filed a counterclaim seeking declaratory relief that NP
unreasonably withheld approval of t he 2017 plan and claiming tortious interference with
the KSH-Chase purchase agreement. Respondents moved for summary judgment on all of
NP’s claims. The district court granted respondents’ motions and dismissed NP’s claims.

6
The parties then agreed to dismiss KSH’s counterclaim. This appeal follows. NP does not
challenge the dismissal of its promissory estoppel or third-party beneficiary claims.
D E C I S I O N
“A motion for summary judgment shall be granted when the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue of material fact and that either party is entitled to a judgment
as a matter of law.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). “On appeal,
we review a grant of summary judgment to determine (1) if there are genuine issues of
material fact and (2) if the district court erred in its application of the law.” Osborne v.
Twin Town Bowl, Inc., 749 N.W.2d 367, 371 (Minn. 2008) (quotation omitted).
To defeat summary judgment, the nonmoving party must show more than a
“metaphysical doubt as to a factual issue.” DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn.
1997) (quotation omitted). But “[a] party need not show substantial evidence to withstand
summary judgment. Instead, summary judgment is inappropriate if the nonmoving party
has the burden of proof on an issue and presents sufficient evidence to permit reasonable
persons to draw different conclusions. ” Schroeder v. St. Louis County , 708 N.W.2d 497,
507 (Minn. 2006).
NP argues that the district court improperly dismissed its claims on summary
judgment. The case appears to hinge on NP’s latitude, pursuant to the declaration, to
withhold approval of the 2017 plan. The declaration provides that NP’s approval is
required for improvements on lot 3, and that NP’s “approval shall not be unreasonably
withheld so long as such plans shall be substantially in accordance with Declarant’s project

7
development plans submitted to and approved by [Burnsville] as part of the planned
development of the Shopping Center.”
Thus, NP could not withhold approval of the 2017 plan if the 2017 plan was
substantially in accordance with the 2004 plan. NP argues there are a number of fact issues
precluding summary judgment, focusing on differences in the parking provisions between
the 2004 and 2017 plans. The parties agree that the 2004 plan called for 249 parking spaces
in lot 3; the 2017 plan, according to respondents, calls for 265 parking spaces. The district
court determined that these two plans were substantially in accord because the number of
parking spaces increased and both plans provide 1.2 parking spaces per bedroom.
NP contends that the 2017 plan does not, in reality, result in 265 parking spaces.
NP points to a number of problems in the 2017 plan that it argues show there are only 227
parking spaces in the 2017 plan: (1) the spaces do not meet a city ordinance for parking
space dimensions; (2) many of the spaces do not conform to industry design standards and
thus are unusable; (3) the 2017 plans include “tandem” spaces; and (4) the 2017 plan
incorrectly counts handicap-accessible spaces as two spaces. NP argues that these alleged
problems create a genuine issue of ma terial fact regarding the parking provisions in the
2017 plan. NP further argues that these assertions about the 2017 plan create a fact dispute
over whether the 2017 plan is substantially in accordance with the 2004 plan.
The question here, however, is not how many usable parking spaces are in the 2017
plan, nor whether the spaces in the 2017 plan comply with city ordinances. Rather, the
question presented is a narrow one: whether the 2017 plan is in substantial accordance with
the 2004 plan. Although NP offered evidence showing alleged problems with the parking

8
provisions in the 2017 plan, it failed to offer evidence showing that the 2004 plan does not
include the same alleged problems. We agree with the district court that NP ultimately
offers no evi dence showing that the 2017 plan differs from the 2004 plan and therefore
cannot show that the plans are not substantially in accord . Because NP failed to show a
genuine issue of material fact that the 2017 plan is not substantially in accord with the 2004
plan, summary judgment was proper.
NP’s primary argument is that it reasonably withheld its approval of the 2017 plan
pursuant to the declaration, but it makes several other arguments in an attempt to halt
development on lot 3. We conclude these claims are without merit.
NP argues that a PUD requires a conditional -use permit (CUP), and because
Burnsville did not grant Nicollet Plaza a CUP, Burnsville exceeded its zoning powers in
designating Nicollet Plaza a PUD. The consequence of this argument, however, is that the
PUD agreement, which was signed by all parties, including NP’s predecessor, and enables
Nicollet Plaza to exist, would be rendered invalid. Because we have determined that the
district court correctly concluded NP did not reasonably withhol d consent, NP may not
now seek to have the PUD underlying the entire Nicollet Plaza project invalidated.
NP next asserts that respondents breached the PUD agreement by amending it
without NP’s consent. We agree with the district court that the evidence conclusively
shows that an amendment to the PUD agreement does not require the signature of all
parties; no amendment to the PUD agreement, historically, was signed by all parties. Thus,
the district court properly concluded that no genuine issue of material fact exists related to
the PUD agreement and the failure of all parties to sign amendments.

9
NP’s final argument is that it is entitled to a permanent injunction based on the
Opus-KSH purchase agreement. This agreement provides that lot 3 is to be constructed in
accordance with the TIF agreement between KSH and Burnsville. It is the original TIF
agreement which called for condominiums on lot 3. As noted above, the TIF agreement
was amended in 2017 to permit construction of apartments on lot 3. Becaus e the TIF
agreement is between Burnsville and KSH, all amendments to it were signed only by
Burnsville and KSH. NP argues that there is a genuine issue of material fact as to whether
Opus agreed that the Opus -KSH purchase agreement would be subject to ame ndments in
the TIF agreement. This, however, is a legal question of contract interpretation, and NP
makes no legal argument that the TI F agreement cannot be amended. NP has not met its
burden on appeal. See Waters v. Fiebelkorn, 13 N.W.2d 461, 464-65 (Minn. 1944) (“[O]n
appeal error is never presumed. It must be made to appear affirmatively before there can
be reversal[] . . . [and] the burden of showing error rests upon the one who relies upon it.”).
In sum, NP failed to demonstrate a genuine issue of material fact or that the district
court erred as a matter of law. We, therefore, affirm the district court.
Affirmed.