Calm Waters, LLC, a Limited Liability Company under the laws of Minnesota, 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This opinion will be unpublished and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
A19-0614

Calm Waters, LLC, a Limited Liability Company under the laws of Minnesota,
Appellant,

vs.

Town of Kroschel, a political subdivision under the laws of the State of Minnesota,
Respondent.

Filed December 16, 2019
Affirmed
Hooten, Judge

Kanabec County District Court
File No. 33-CV-18-160

Grant W. Lindberg, Lindberg Law Office, P.A., Cambridge, Minnesota; and

Charles C. Kallemeyn, Kallemeyn & Kallemeyn, Coon Rapids, Minnesota (for appellant)

Jessica E. Schwie, Joshua P. Devaney, Kennedy & Graven, Chartered, Minneapolis,
Minnesota (for respondent)

Considered and decided by Hooten, Presiding Judge; Reilly, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
Appellant Calm Waters, LLC (Calm Waters ) challenges the district court’s
summary judgment in favor of respondent Kroschel T ownship (Kroschel ) affirming
Kroschel’s denial of Calm Waters’ variance application . Calm Waters argues that: (1)

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Kroschel lacks jurisdiction over zoning matters in shoreland because it has not adopted
shoreland management controls under Minn. Stat. §§ 103F.201 –.227 (2018); (2)
Kroschel’s denial of Calm Waters’ variance requests was arbitrary and capricious; (3) the
district court erred in determining that Calm Waters must present affirmative evidence to
rebut the presumptive validity of Kroschel’s comprehensive plan; and (4) the district court
abused its discretion in denying Calm Waters’ motion to compel disco very as moot. We
affirm.
FACTS
Kroschel Township, a political subdivision located in Kanabec County, has a
population of 216 . Calm Waters owns a parcel of land located inside the limits of the
township that includes portions of two lakes. Calm Waters wishes to subdivide its plot into
four quadrilateral parcels of four different sizes: parcel A (19.3 acres); parcel B (19 acres);
parcel C (26.8 acres); and parcel D (25.8 acres). Although proposed parcels A and B abut
a public road, proposed parcels C and D would only be accessible via a utility easement
that travels from the public road, bisecting parcels B and C, and ending in parcel D.
Kroschel has maintained a comprehensive land use plan since the early 1980s and a
zoning ordinance since 1984. Kroschel’s current zoning ordinance dictates that no parcel
of land can be smaller than 20 acres and all parcels of land must abut a public road for at
least 300 feet.
On September 1, 2015, Calm Waters submitted a variance application to Kroschel’s
town board seeking approval to subdivide its parcel into four smaller parcels. Calm Waters
sought a variance from the minimum lot size requirement for parcels A and B and a

3
variance from the p ublic road abutment requirement for parcels C and D. Kroschel’s
planning commission, consisting of the same three members of the town board, sent a letter
to members of the community announcing that there would be a special meeting of the
planning commission to discuss the variance requests.
The special meeting was held on No vember 10 , 2015. At this meeting, several
members of the community expressed their concerns with the proposed subdivision.
Immediately following the adjournment of t he special meeting, the town board called a
meeting and voted to deny the variance requests on the basis of, among other reasons,
parcels C and D not abutting a public road for at least 300 feet and parcels A and B being
smaller than 20 acres as required in Kroschel’s zoning ordinance.
On June 11, 2018, Calm Waters filed suit against Kroschel in district court alleging
that: (1) Kroschel did not have the authority to zone the land in Calm Waters’ parcel
because it contains shoreland, defined as land within 1,000 feet of a natural body of water,
and the regulation of shoreland is preempted by Minn. Stat. §§ 103F.201–.227 (2018); and
(2) Kroschel’s denial of the variance request s was arbitrary and capricious. The district
court granted Kroschel’s summary judgment motion. This appeal follows.
D E C I S I O N
Calm Waters appeals f rom the district court’s grant of summary judgment to
Kroschel. When reviewing the grant or denial of summary judgment, we must determine
whether any genuine issues of material fact exist and whether the district court erred in
applying the law. Montemayor v. Sebright Prods., Inc. , 898 N.W.2d 623, 628 (Minn.
2017). We must view the evidence in the light most favorable to the party against whom

4
judgment was granted. STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76–
77 (Minn. 2002). We address each of Calm Waters’ arguments in turn.
I. Kroschel has the authority to zone shoreland that is also subject to the
regulatory overlay of Kanabec County’s shoreland management controls.

Calm Waters argues that Kroschel does no t have the authority to zone its plot of
land because the land is shoreland and the regulation of shoreland is field preem pted by
Minn. Stat. §§ 103F.201 –.227. Kroschel responds that shoreland regulations do not
prevent the township from zoning the land and instead act merely as a re gulatory overlay
onto existing zoning ordinances. “We review a district court’s application of the law de
novo.” Harlow v. State, Dep’t of Human Servs., 883 N.W.2d 561, 568 (Minn. 2016).
A. Kroschel has the authority to adopt a zoning ordinance under Minnesota law.
A zoning ordinance divides geographic areas into districts and assigns permitted
and conditional uses to each district. In re Denial of Eller s Media Co.’s Application s for
Outdoor Adver. Device Permits, 664 N.W.2d 1, 8 (Minn. 2003). “Zoning ordinances were
established to control land use, and development in order to promote public health, safety,
welfare, morals, and aesthetics. ” In re Stadsvold , 754 N.W.2d 323, 329 (Minn. 2008)
(quotation omitted).
Under Minnesota law, counties and townships have the authority to zone. See Minn.
Stat. § 394.24, subd. 1 (2018) (counties may enact “official controls”); Minn. Stat.
§ 462.357, subd. 1 (2018) ( municipalities may enact “official controls ”); see also Minn.
Stat. § 462.352, subd. 15 (2018) (“official controls” include zoning ordinances); Minn.
Stat. § 462.352, subd. 2 (2018) (defining a municipality as any city or town, including those

5
operating under a home rule charter) . This authority to control la nd use is derived from
the power granted to counties and townships by the state to write their own comprehensive
plans. See Minn. Stat. § 394.23 (2018) (authorizing county comprehensive plans); Minn.
Stat. § 462.355, subd. 1 (2018) (authorizing municipal comprehensive plans). Each entity
also has the authority to establish a planning commission to approve variances that deviate
from zoning restrictions listed in comprehensive plans. See Minn. Stat. § 394.30, subd. 1
(2018) (authorizing county planning commissions); Minn. Stat. § 462.354, subd. 1 (2018)
(authorizing municipal planning commissions).
As the authority to zone is derived from the state, the state is free to place additional
restrictions on a township’s ability to control the land within its borders. However,
restrictions that supersede the ability of a local government to make land use decisions
must be unambiguously delegated by the legislature. See In re Hubbard, 778 N.W.2d 313,
321–22 (Minn. 2010) ( stating legislative delegat ion must be expressly or impliedly
authorized and the supreme court is reluctant to find implied authority).
One area where the legislature has established special regulatory conditions is for
shoreland. Shoreland is defined as any land within 1,000 feet of the normal high watermark
of a lake, pond, or flowage. Minn . Stat. § 103F.205, subd. 4(1) . The state has crafted an
extensive scheme to regulate the development of shorelands in order to preserve
shorelands’ economic and environmental value and to preserve and enhance the quality of
surface water. See Minn. Stat. §§ 103F.201 (1), (2); Minn. R. 6120.2500 –.3900 (2017).
Although this scheme provides that a township may regulate shorelands, the regulations
must be as strict as, or stricter than, the regulations ad opted by the county, which in turn

6
must be as strict as, or stricter than, the model scheme established by the Minnesota
Department of Natural Resources (DNR). See Minn. Stat. § 103F.221, subd. 5 ; Minn. R.
6120.3900, subp. 4a; Minn. R. 6120.2600.
The au thorizing statute for shoreland regulation explicitly provides that a
municipality may adopt and enforce an ordinance or rule affecting the use and development
of shoreland that is more restrictive than the standards and criteria adopted b y the DNR.
Minn. Stat. § 103F.22 1, subd. 5. The promulgated rules for township shoreland
management allow for a township to specifically regulate shorelands in a manner
inconsistent with the county’s plan if the management controls are approved by the county.
Minn. R. 6120.3900, subp. 4a(B). Kanabec County requires that any township shoreland
management control also be approved by the DNR. Even in light of a broad regulatory
scheme detailed in the rules, the DNR only has the authority to ignore, impede, or
circumvent a township’s zoning ordinance when that authority has been unambiguous ly
granted by the legislature in the authorizing statute. See Hubbard, 778 N.W.2d at 321.
Kroschel has maintained a comprehensive land use plan since the early 1980s and
zoning ordinance since 1984. The township has two zoning regions: agricultural/open
(A/O) districts and shoreland districts. Kroschel’s zoning ordinance dictates that parcels
of land zoned as A/O must: (1) be larger than 20 acres and (2) abut a public road for at least
300 feet. The zoning ordinance also states, though rather opaquely, that Kanabec County’s
shoreland management controls apply to shoreland as an overlay to existing A/O zoning
requirements. Kroschel’s zoning ordinance does not list any specific requireme nts for
shoreland districts and instead defers to the county’s controls. However, Kroschel’s zoning

7
ordinance does provide that when the county’s shoreland management controls are less
restrictive than an ordinance specified in the A/O zoning requirements, the more restrictive
rules apply. Kroschel’s A/O zoning requires more acres per parcel than are required by the
county’s shoreland management controls.
B. Minn. Stat. § 103F does not preempt Kroschel from zoning shoreland under field
preemption.

Calm Waters argues that Kanabec County’s shoreland management controls
preempt the township from making any land use decisions, including zoning, on land that
is shoreland. Calm Waters states that because the DNR’s shoreland regulations provide
that a township must adopt township-specific shoreland management controls to
specifically regulate shoreland, Kros chel’s failure to adopt controls independent of those
of the county prohibits the township from any form of land-use management within 1,000
feet of a body of water. “Preemption of municipal ordinances by state law is a legal
question subject to de novo review.” Bicking v. City of Minneapolis, 891 N.W.2d 304, 312
(Minn. 2017).
The Minnesota Supreme Court recognizes three types of sta te preemption of
municipal authority: (1) express preemption; (2) conflict preemption; and (3) field
preemption. Jennissen v. City of Bloomington, 913 N.W.2d 456, 459 (Minn. 2018). Calm
Waters only argued for the existence of field preemption so we restrain our analysis to that
form.
Field preemption exists when a state law so fully occupies a particular field of
legislation that there is no room for local regulation. Mangold Midwest Co. v. Village of

8
Richfield, 143 N.W.2d 813, 819 ( Minn. 1966). Under this doctrine, it does not matter
whether the local legislation complements or contradicts the state law—it is preempted by
the very nature of the subject matter. Id.
We ask four questions when determining if the actions of a municipality are field
preempted by state law: (1) what is the subject matter to be regulated; (2) whether the
subject matter has been so fully covered by state law as to have become solely a matter of
state concern; (3) whether the legislature, in partially regulating the subject matter, clearly
indicated that it is a matter solely of state concern; and (4) whether the subject matter itself
is of such a nature that local regulation would have unreasonably adverse effects upon the
general populace of the state. Id. at 820. In light of these questions, we turn to the caselaw.
In City of Birchwood Village v. Simes, we held that a city ordinance limiting the size
of a boat moored to a private dock on a lake was field preempted by Minn. Stat. § 103B.661,
subd. 2 (1996). 576 N.W.2d 458, 461 (Minn. App. 1998). The statute at issue created a
general conservation district and granted that district broad authority to regulate conduct
and activities on bodies of water within the district . Id. We held that the municipal
regulation was preempted because: (1) the powers granted by the statute were broad and
intended to preempt all local authority and control; (2) the enabling legislation still
provided a voice for the communities through a governing board; and (3) allowing each
municipality to enact different boat length requirements would have an adverse impact on
the public. Id. at 462.
Unlike the s tatute at issue in Birchwood Village, we do not read Minn. Stat.
§§ 103F.201–.221 as intending to strip local authorities of all control in managing the land

9
within 1,000 feet of a natural body of water. Indeed, townships and municipalities are
explicitly authorized by the statute to adopt more restrictive controls than those modeled
by the DNR. See Minn. Stat. § 103F.221, subd. 5. The existence of a regulatory pathway
that enables townships to adopt more restrictive shoreland-specific controls than those
adopted by the county leaves room for local control and authority. This suggests that the
legislature did not intend to so totally occupy the field of shoreland regulation so as to strip
any local authority by nature of the subject matter.
As a legislature must explicitly delegate, or unambiguously implicitly delegate, the
authority to overcome local government zoning decisions, Hubbard, 778 N.W.2d at 321–
22, the authority reserved to a township to adopt more restrictive shoreland regulations
suggests that the legislature did not intend to fully occupy the field of shoreland regulation
so as to implicate field preemption . Therefore, Kroschel’s act of deferring to Kanabec
County’s shoreland management controls does not preempt the township from also
regulating land around bodies of water.
C. Kanabec County’s shoreland management controls overlay Kroschel’s zoning
requirements.

An overlay district provides a supplemental unit of regulation superimposed on an
existing zoning scheme. Minn. R. 6106.0050, subp. 46 (2017). This form of layered land
use regulation allows a state to address common issues that may extend across multiple
zones. See, e.g., Amcon Corp. v. City of Eagan, 348 N.W.2d 66, 69 (Minn. 1984) (noting
that many land use classifications may apply to a single plot of land). Although caselaw is
sparse on a specific t est to determine whether a land use restriction is intended t o be an

10
overlay, the regulations note that overlay districts are often used to protect historic features
and natural resources such as a shoreland . Minn. R. 6106.0050, subp. 46. Additionally,
the DNR notes that overlay districts are “ often a practical ap proach for administering
shoreland regulations .” Minn. Dep’t of Nat. Res., Shoreland Management Model
Ordinance, https://www.dnr.state.mn.us/waters/watermgmt_section/shoreland/mod-
ord.html (last visited Nov. 12, 2019).
Calm Waters argues that concurrent jurisdiction between different layers of
government (the county and the township), a jurisdictional arrangement necessary for a
county-based regulatory overlay to exist, cannot exist. In the alternative, if concurrent
jurisdiction can exist, it was ceded when Kroschel opted not to establish independent
shoreland management controls. Kroschel contends that: (1) it has concurrent jurisdiction
with the county over the shoreland and the county’s shoreland management controls are
simply an overlay to the township’s existing zoning scheme; and (2) the general A/O
zoning requirements also apply to areas classified as shoreland.
In In re Administrative Order Issued to Wright County , a persuasive authority, we
held that a township may issue building permits on shoreland even as the county continues
to administer shoreland management controls. 784 N.W.2d 398, 404 (Minn. App. 2010) .
Although we foun d that concurrent jurisdiction exists between the county and the city
within the shoreland, we did note that building permits are distinct from other forms of
land use regulations, such as zoning, as building permits do not address the placement and
density of development. Id. Although this speaks to the ability of a county and township

11
to have concurrent jurisdiction over shoreland, it does leave open the question of whether
this authority extends to zoning.
The shoreland regulatory scheme provides that an individual seeking to build on
shoreland need only apply for approval from one gover nmental body under Minn. R.
6120.3900, subp. 4a(B). Calm Waters asks us to infer from this single application, defined
in a regulation, that the legislature intended not only for all zoning authority to be stripped
from a township for failure to seek independent shoreland management controls, but also
to prohibit concurrent jurisdiction between a township and a county. We decline to do so.
A single regulatory pathway is simply insufficient in light of the supreme court’s direction
that in order for the DNR to circumvent a township’s zoning ordinance, the authority must
be unambiguously granted by the legislature. See Hubbard, 778 N.W.2d at 321.
Additionally, the regulatory definition of an overlay district explicitly contemplates
that overlays are a tool that may be used to add additional layers of regulatory protection
on top of existing zoning at shorelands. Minn. R. 6106.0050, subp. 46; see also County of
Pine v. State, Dept. of Nat. Res., 280 N.W.2d 625, 626 (Minn. 1979) (stating that shoreland
regulations do not prohibit the DNR from imposing more restrictive zoning regulations);
Wright County , 784 N.W.2d at 404 (holding that a count y and a township may have
concurrent jurisdiction over shoreland where the township seeks to issue building permits).
Kanabec County’s comprehensive plan explicitly states that the county will
continue to implement shoreland management regulations “as a n overlay district to
provisions found in existing township ordinances which manage development in rural
portions of the County.” The shoreland in Kroschel is subject to the county’s shoreland

12
management controls and Kroschel’s more restrictive zoning ordinance. Although the
county’s shoreland controls are less strict than the township’s underlying zoning ordinance,
the county is free to adopt stricter controls and the township would be required to abide by
those additional restrictions.
As the inability for a township to zone land within 1,000 feet of a body of water —
in a state filled with 11,842 lakes 1—would be a significant departure from current zoning
practices, a single approval pathway is not sufficient for us to find that no concurrent
jurisdiction, and therefore no regulatory overlay, exists. Instead, we hold that a bsent
unambiguous legislative intent to strip a township of all independent zoning authority
within 1,000 feet of water, Kroschel has the authority to zone shoreland that also remains
subject to the regulatory overlay of Kanabec County’s shoreland management controls.
II. The district court did n ot err in finding that Kroschel ’s denial of Calm
Waters’ variance requests was not arbitrary and capricious.

Kroschel’s zoning ordinance dict ates that no parcel of land can be smaller than 20
acres and all parcels of land must abut a public road for at least 300 feet. Calm Waters
sought a variance from the minimum lot size requirement to create two parcels that were
under the 20 -acre minimum l ot size and a variance from the public road abutment
requirement to create two stacked parcels that would require traversing an existing
easement to reach. Kroschel denied the requests.

1 Minn. Dep’t of Nat. Res., Lakes, rivers, and wetland facts ,
https://www.dnr.state.mn.us/faq/mnfacts/water.html (last visited Nov. 12, 2019).

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We review a municipal variance decision “to determine whether the m unicipality
was within its jurisdiction, was not mistaken as to the applicable law, and did not act
arbitrarily, oppressively, or unreasonably, and to determine whether the evidence could
reasonably support or justify the determination.” Krummenacher v. C ity of Minnetonka ,
783 N.W.2d 721, 727 (Minn. 2010) (quotations omitted) . To do so, we must make an
independent examination of the record before Kroschel and arrive at our own conclusion
as to the propriety of Kroschel’s final decision, without according any special deference to
the same review conducted by the district court. Swanson v. City of Bloomington , 421
N.W.2d 307, 311 (Minn. 1988) . When a proceeding is fair and produces a record that is
clear and complete, this court’s review is limited to the record developed before the town
at the time the decision was made. R.L. Hexum & Assocs., Inc. v. Rochester Twp., Bd. o f
Supervisors, 609 N.W.2d 271, 278 (Minn. App. 2000).
The standard of review “remains whether on the evidence before it, the [town board]
reached a reasonable decision.” Town of Grant v. Washington Cty., 319 N.W.2d 713, 717
(Minn. 1982). “An action is reasonable, or not arbitrary, when it bears a reasonable
relationship to the purpose of the ordinances.” Clear Channel Outdoor Advert., Inc. v. City
of St. Paul, 675 N.W.2d 343, 346 (Minn. App. 2004), review denied (Minn. May 18, 2004).
“The setting aside of routine municipal decisions should be reserved for those rare
instances in which the [township ]’s decision has no rational basis.” White Bear Docking
& Storage, Inc. v. City of White Bear Lake, 324 N.W.2d 174, 176 (Minn. 1982).
In VanLandschoot v. City of Mendota Heights , the supreme court held that a
municipal decision-making body has broad discretionary power to deny an application for

14
variances. 336 N.W.2d 503, 508–09 (Minn. 1983). Although a denial must be made based
on a record, the record may include contemporaneous findings, transcripts, and written
reports by city directors. Swanson, 421 N.W.2d at 313. Indeed, a record is not limited to
the actual proceedings. Mendota Golf, LLP v. City of Mendota Heights, 708 N.W.2d 162,
181 n.13 (Minn. 2006) (finding the comprehensive plan, subdivision ordinance, and
documents reflecting the historical designation, regulation , and character of the propert y
are relevant to a city’s land use decision). Accordingly, our re view of the reasonableness
of Kroschel’s denial is not limited to the arguments advanced in the public hearing
regarding the variance requests.
Turning to the reasonableness of Kroschel’s denial, a township’s police powers
allow the township to approve variances only “when they are in harmony with the general
purposes and intent of the ordinance and when the variances are consistent with the
comprehensive plan.” Minn. Stat. § 462.357, subd. 6(2). Variances may be approved when
an owner establishes pract ical difficulties in complying with the zoning ordinance. Id.
Practical difficulties mean the property owner proposes to use the property in a reasonable
way but cannot do so under the current zoning scheme due to circumstances unique to the
property and not of the owner’s making. Id. Additionally, this court may uphold the
reasonableness of a denial so long as there is at least one rational basis for the decision.
See, e.g., VanLandschoot, 336 N.W.2d at 510.
The Calm Waters’ parcel is subject to Kroschel’s A/O zoning restrictions as well as
Kanabec County’s shoreland management controls through a regulatory overlay. Because
Calm Waters wished to subdivide the plot in a manner that violates Kroschel’s zoning

15
ordinance, Calm Waters requested a variance. Calm Waters was provided with notice of
the hearing and had an opportunity to be heard regarding its requested variance. And yet,
Kroschel denied Calm Waters’ variance request s in part because it was not in harmony
with the purpose and intent of Kroschel’s A/O zoning.
As stated in Kroschel’s zoning ordinance, t he purpose of the A/O district is “to
provide areas to be utilized and retained in agricultural and/or open space uses, preserve
the local agricultural economy, protect private agricultural investm ents, promote orderly
development by limiting scattered non -farm uses, and secure economy in government
expenditures for public facilities and services.” Kroschel established minimum lot sizes to
limit the density of development in this rural township so as to maintain its rural and
agricultural character. Kroschel imposed a minimum frontage requirement to ensure every
parcel had adequate access to a public road and to avoid the stacking of lots in a manner
that would be inconsistent with the rural and ag ricultural character of the township. The
record does not show that the property had unique characteristics that prevent the property
from being divided in a manner consistent with the zoning ordinance, even if the division
would yield fewer parcels than Calm Waters seeks to create.
In addition to the lot size and frontage requirements, Kroschel cited four additional
reasons for denying the variance requests: (1) the proposed property lines do not create an
orderly division of the property consistent wit h the zoning ordinance and comprehensive
plan; (2) the variance would not keep with the general purpose and intent of the zoning
ordinance as it would land-lock two parcels; (3) the property can be developed and used in
a manner consistent with the county ordinance without creating practical difficulties for

16
Calm Waters; and (4) the request is based primarily on economic concerns. The general
sentiment of the community also likely played a role in Kroschel’s decision, as well as,
perhaps, an almost 15-year history of litigation over this property. See Calm Waters, LLC
v. Kanabec Cty. Bd. of Comm’rs, 756 N.W.2d 716 (Minn. 2008).
Although Calm Waters requested only a slight deviation below the minimum parcel
size for which the region is zoned, approving the variance would slightly increase the lot
density of the region in a manner inconsistent with the intent of the zoning o rdinance and
comprehensive plan to keep the region rural and devoted to agricultural purposes.
Additionally, although two portions of the parcel may be accessible using an easement, the
stacking of lots also is inconsistent with the intent of the comprehens ive plan and zoning
ordinance. Finally, although the location of the two lakes does complicate the development
of the property, the record does not reflect that the division requested by Calm Waters was
necessary due to practical difficulties unique to the parcel. Instead, the practical difficulties
Calm Waters claims are difficulties entirely of its own making in an attempt to subdivide
the property into four parcels . See Minn. Stat. § 462.3 57, subd. 6(2) ( stating practical
difficulties are “due to circumstances unique to the prope rty not created by the
landowner”).
And so, because approving the variance would create four parcels that Kroschel
could reasonably find inconsistent with the intent of the comprehe nsive plan and zoning
ordinance, we hold that Kroschel’s decision to deny Calm Waters’ variance application
was not arbitrary and capricious.

17
III. The district court did not err in finding that Calm Waters must present
affirmative evidence of Kroschel’s failure to adopt a comprehensive plan.

Calm Waters claims that the only copy of Kroschel’s comprehensive plan presented
was a “draft” plan from the early 1980s and therefore is invalid. Calm Waters argues that
Kroschel has no authority to zone as the comprehensive plan is invalid.
Just as an act of a legislature is presumed constit utional, a comprehensive plan is
presumptively valid. See City of Duluth v. Krupp, 49 N.W. 235, 236 (Minn. 1891) (holding
that a city ordinance is presumptively valid). Absent affirmative evidence to the contrary,
we will presume the municipality complied with all necessary formalities. Id. Only when
the record affirmatively shows that the necessary formalities are omitted will we find the
ordinance invalid. Id. We will not set aside an ordinance unless its invalidity is clear.
Bolen v. Glass, 755 N.W.2d 1, 5 (Minn. 2008).
In Krupp, the supreme court held that when the record failed to show an ordinance
was voted on and adopted as was required under a city’s charte r, the city was entitled to
the presumption that the ordinance was validly adopted absent affirmative evidence that
the vote did not take place. Krupp, 49 N.W. at 236.
Calm Waters argues that the township’s failure to produce a final plan, as well as
Calm Waters’ inability to find any public notice of the adoption of the final plan in two
local newspapers from the time period, is affirmative evidence that the plan was not validly
adopted. Kroschel denies that the plan available to Calm Waters was merely a draft plan.
The validity of the plan is a question of fact. Yet, relying on Krupp, the district
court held that the comprehensive plan was presumptively valid and Calm Waters failed to

18
present affirmative evidence showing that the plan was not validly adopted. Although
Calm Waters argues that the district court mischaracterized its evidence as negative, it is
not clear that Calm Waters’ evidence, even if characterized as affirmative, would overcome
a presumption that the plan was validly adopted. The entirety of Calm Waters’ evidence
appears to be an inability to find a notice in the newspaper, omission of any reference to
the plan in a series of hand-written meeting notes from the 1980s, and, as the district court
found, general “ troublesome” record k eeping. Overcoming a presumption of validity
requires affirmative evidence that the township decided not to adopt the plan—not merely
evidence that a party cannot find the precise moment a plan was adopted. As Carl Sagan
popularized, “absence of evidence is not evidence of absence.” Carl Sagan, The Demon-
Haunted World: Science as a Candle in the Dark 223 (1997).
In light of a strong presumption that an ordinance is valid, we hold that the district
court did not err when it found Calm Waters failed to present affirmative evidence that the
comprehensive plan was not adopted.
IV. The district court did not abuse its discretion when it denied Calm Waters’
motion to compel discovery.

The denial of a motion to compel discovery is reviewed for an abuse of discr etion.
Gunnufson v. Onan Corp. , 450 N.W.2d 179, 181 (Minn. App. 1990) . A district court
abuses its discretion when it makes findings unsupported by the evidence or by improperly
applying the law. Sehlstrom v. Sehlstrom, 925 N.W.2d 233, 239 (Minn. 2019).
The district court has broad discretion to determine the procedural calendar of a
case; nevertheless, there is a presumption in favor of granting discovery orders. Rice v.

19
Perl, 320 N.W.2d 407, 412 (Minn. 1982). Summary judgment is premature when
subsequent discovery is likely to discover relevant material facts to the proceeding. Bixler
by Bixler v. J.C. Penney Co., 376 N.W.2d 209, 216–17 (Minn. 1985).
In Rice, the supreme court established a two -part test to deter mine whether a
discovery request should be granted: first, was the requesting party diligent in obtaining or
seeking discovery; and second, did the requesting party make the request in a good-faith
belief that material facts will be uncovered. Rice, 320 N.W.2d at 412; see also Hasan v.
McDonald’s Corp., 377 N.W.2d 472, 475 (Minn. App. 1985) (reviewing a decision on a
motion to compel discovery under the same test set out in Rice for discovery continuances).
When a district court is concurrently faced wit h a motion for summary judgment
and a motion to compel discovery, the better practice is to decide the motion to compel
before deciding the motion for summary judgment. Hasan, 377 N.W.2d at 475 . This
posturing is particularly important when a municipal body has failed to make a complete
and adequate record of its proceedings in zoning matters, as a court may require the
municipality to prove the basis of its decision and expand the record through discovery.
Swanson, 421 N.W.2d at 311–12; Honn v. City of Coon Rapids, 313 N.W.2d 409, 415–16
(Minn. 1981).
In this case , although the distri ct court found that the Kroschel ’s lack of
recordkeeping was troubling, it is not clear that subsequent discovery would provide Calm
Waters with the supplemental information it sought.
Applying Rice, the record suggests that Calm Waters was not necessarily diligent in
its efforts to seek discovery. Although Calm Waters formally objected to the record of the

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proceedings created by Kroschel , Calm Waters was unresponsive to requests by the
township to supplement the record. Second, it is also not clear that Calm Waters made its
motion to compel discovery in a good-faith belief that material facts would be subsequently
uncovered. This is a township of 216 people. The only formal archival system appears to
be based in someone’s home. As Calm Waters was well aware of Kroschel’s
administrative deficiencies from their extensive experience with Kroschel’s municipal
procedures, it seems unlikely that material information from 35 years ago would somehow
be uncovered.
In one line, the dist rict court dismissed Calm Water s’ motion to compel discovery
as moot as the district court already granted Kroschel’s summary judgment motion. Other
than mootness, the district court presented no reason to dismiss the motion. Although the
better approach would be for the district court to rule on the motion to compel discovery
before ruling on the motion for summary judgement, it is not clear that subsequent
discovery would uncover any additional information to supplement the record at issue.
Therefore, the district court did not abuse its discretion when it dismissed Calm Waters’
motion to compel discovery.
Affirmed.