Thomas Tulien, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0542

Thomas Tulien,
Appellant,

vs.

City of Minneapolis,
Respondent,

Black Tree, LLC, d/b/a Yellow Tree Development,
Respondent.

Filed January 11, 2021
Reversed
Hooten, Judge

Hennepin County District Court
File No. 27-CV-19-15592

Thomas F. DeVincke, Patrick B. Steinhoff, Malkerson Gunn Martin LLP, Minneapo lis,
Minnesota (for appellant)

James R. Rowader, Jr. , City Attorney, Brian S. Carter, Assistant City Attorney,
Minneapolis, Minnesota (for respondent City of Minneapolis)

James J. Thomson, Jr., Michelle E. Weinberg, Kennedy & Graven , Chartered,
Minneapolis, Minnesota (for respondent Bl ack Tree LLC , d/b/a Yellow Tree
Development)

Considered and decided by Hooten , Presiding Judge; Smith, T racy M., Judge; and
Halbrooks, Judge.

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

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NONPRECEDENTIAL OPINION
HOOTEN, Judge
In this appeal from the district court’s grant of summary judgment for respondents
City of Minneapolis (City) and Black Tree LLC, d/b/a Yellow Tree Development (Yellow
Tree), appellant Thomas Tulien argues that the district court erred by concluding that the
Minnesota municipal planning act (MPA), Minnesota Statutes sections 462.351-.365
(2018), allows the City to provide its planning commission, rather than its board of
adjustments, with the authority to review and grant variances from the local zoning code
when an applicant submits multiple land -use requests. Tulien also argues that the City
granted five variances and a conditional use permit without a reasonable basis. We reverse.
FACTS
This case is an appeal by Tulien from the district court’s grant of summary judgment
for respondents. Tulien lives in a house in the Whitt ier neighborhood of Minneapo lis,
across an alley from the corner of Blaisdell Avenue and 26th Street West, where Yellow
Tree proposed to build a six-story, mixed-use office and residential apartment building (the
project). The project deviated from the height, size, and layout zoning requirements of the
OR2 district where the building was to be constructed. 1 Yellow Tree submitted to the

1 OR2 means High Density Office Residence District. M inneapolis Code of Ordinances
§ 547.20 (2018). “The office residence districts are established to provide an environment
of mixed residential, office, institutional, and where appropriate, small scale retail sales
and service uses designed to serve the immediate surroundings. These office residence
districts may serve as small to medium sca le mixed use areas within neighborhoods, as
higher density transitions between downtown and residential neighborhoods, or as
freestanding institutions and employment centers throughout the city.” MCO § 547.10
(2018).

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City’s Planning Commission several applications to deviate from those zoning
requirements, including seven variances and a conditional use permit (CUP) to exceed the
building height limit for the property.2
City planners at the Minneapolis Department of Community Planning and
Economic Development (CPED) first reviewed Yellow Tree’s applications. CPED
reviews every application for a land use permit and then recommends to the City whether
it should grant or deny the application. Minneapolis, Minn., Code of Ordinances (MCO)
§§ 415.20(a)(4) (2013), 525.120(b)(1 ) (2015 ). After reviewing Yellow Tree’s
applications, CPED recommen ded that the Planning Commission deny the variance
requests because they appeared to be “driven solely by economic considerations by the
financial viability of the project” and were “out of scale with the standards of the zoning
code and policy guidance of the comprehensive [development] plan.” CPED also
recommended that the Planning Commission deny the CUP because it risked injuring the
use and enjoyment of surrounding property, failed to comply with the comprehensive plan,
would shadow surrounding residential property throughout the year , was out of scale with
surrounding properties, and inconsistent with the character of the surrounding uses.
In addition to CPED’s recommendation, the Planning Commission received input
from Whittier residents and Yellow Tree leading up to and during its meeting to decide the
applications. The Whittier Alliance Neighborhood Association and 11 neighborhood

2 Variances are granted to allow a person to use property in a way that does not conform to
the specific requirements of the zoning ordinance. Minn. S tat. § 462.357, subd. 6(2)
(2018); see also Arcadia Dev. Corp. v. City of Bloomington, 125 N.W.2d 846, 851 (1964).

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residents expressed their support for the project through a combination of written
comments before the meeting and brie f speeches during it. Six other residents, includ ing
Tulien, commented in opposition to the project. Yellow Tree and DJR Architecture, which
designed the project, provided explanations for the applications and answered
commissioners’ questions during the meeting. CPED staff also attended the meeting to
answer the commissioners’ questions. After hearing from the residents, project developers,
and city staff, the Planning Commission rejected CPED’s recommendations and approved
all of Yellow Tree’s applications.
Tulien appealed the Planning Commission’s decision to the City Council’s Standing
Committee on Zoning and Planning (Zoning Committee). Before the Zoning Committee
heard the appeal, Yellow Tree modified the project to eliminate two variance requests ,
changed another variance request, and reduced the building height in the CUP. Nine
residents commented to the Zoning Committee in support of Tulien’s appeal and in
opposition to the project. The Zoning Committee recommended that the full City Council
deny Tulien’s appeal and approve Yellow Tree’s applications. The City Council follo wed
those recommendations.
Tulien then appealed to the district court, contending that the Planning Commissio n
lacked the statutory authority to grant the variances, and the City lacked a rational basis to
grant the variances and CUP. Both sides moved for summary judgment, which the district
court granted for the City and Yellow Tree. Tulien then appealed to this court.

5
DECISION
Tulien appeals from the district court’s grant of summary judgment to the City and
Yellow Tree, contending that the City’s decision to grant the variances and the CUP was
unreasonable, arbitrary, and capricious, and that the district court erred in its interpretatio n
of the MPA, Minnesota Statutes sections 462.354 and .357, subdivision 6 (2018).
I. The City’s decisions to grant the variances were unreasonable, arbitrary, and
capricious.
Tulien contends that the City lacked a rational basis to grant the variances. The City
and Yellow Tree respond that the City gave legally sufficient and factually supported
reasons for granting the variances, so its decision had a reasonable basis. A zoning
authority must have a reasonable basis for all zoning decisions. Honn v. City of Coon
Rapids, 313 N.W.2d 409, 41 7 (Minn. 1981). We review the zoning authority’s decision
independent of the findings and conclusions of the district court. Mendota Golf, LLP v.
City of Mendota Heights, 708 N.W.2d 162, 180 (Minn. 2006). We will reverse the decision
as unreasonable, arbitrary, and capricious if the articulated reasons for the decision were
legally insufficient or factually unsupported. RDNT, LLC v. City of Bloomington , 861
N.W.2d 71, 75 –76 (Minn. 2015). The party challengi ng the zoning decision bears the
burden of proving it was legally insufficient or factually unsupported. Sagstetter v. City of
St. Paul, 529 N.W.2d 488, 492 (Minn. App. 1995). After reviewing the record before the
City and the City’s findings, we conclude that the City acted unreasonably, arbitrarily, and
capriciously when it granted the variances.
The City approved the following five variances for the project:

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1) Reduce the required number of loading/unloading parking spaces from one to zero.

2) Reduce the distance that balconies on the building must be set back from the rear
yard property line from 15 feet to 10 feet.

3) Increase the percentage of the lot that the building is allowe d to cover from 70
percent to 77.7 percent.

4) Reduce the distance that the building must be set back from the front yard property
line along 26th Street West from 19.7 feet to one foot.

5) Reduce the distance that the building must be set back from the front yard property
line along Blaisdell Avenue from 33.5 feet to one foot.

The City was required to articulate findings under three factors to establish a reasonable
basis to grant each variance, the first factor being that
[p]ractical difficulties exist in complying with the ordinance
because of circumstances unique to the property. The unique
circumstances were not created by persons presently having an
interest in the property and are not based on economic
considerations alone.

MCO § 525.500(1) (2011); see also Minn. Stat. § 462.357, subd. 6 (2) (“‘Practical
difficulties,’ . . . means . . . the plight of the landowner is due to circumstances unique to
the property not created by the landowner.”). Tulien challenges only the City’s findin gs
for the practical difficulty factor, so we confine our review to those findings.
Our case law instructs that a practical difficulty finding requires multip le
components. The “circumstances unique to the property” must be features or
characteristics of the property or its surroundings, not the operation of the zoning code on
the property; also, the finding must explain how th ose circumstances make it difficult for
the property owner to conform their proposed use to the zoning requirement from which
they seek to vary. See Nolan v. City of Eden Prairie , 610 N.W.2d 697, 702 (Minn. App.

7
2000), review denied (Minn. July 25, 2000) (holding that the city made a legally sufficient
finding of practical difficulties when it explained that the property’s location at the end of
a cul-de-sac, as well as the stand of trees and significant grade chang e of 44 feet on the
property, limited the owner’s ability to create house pads and lot lines in compliance with
the zoning code); State ex rel. Neighbors for E. Bank Livability v. City of Minneapolis, 915
N.W.2d 505, 517 –18 (Minn. App. 2018), review denied (Minn. Aug. 7, 2018) (holding
similarly when the city explained that permanent structures on either side of a proposed
apartment building physically limited the lot size and ability to build horizontally on the
property in compliance with the zoning code) ; Sagstetter 529 N.W.2d at 492 (holding
similarly when the city found that “soil conditions and a sewer main prohibited excavatio n
that would allow [the project] to comply with the 30 foot height limitation in the
ordinance”). Relatedly, we have upheld a local government’s denial of a variance when it
finds no unique characteristics or features of the property or surrounding area. See, e.g.,
Cont’l Prop. Grp., LLC v. City of Wayzata, No. A15-1550, 2016 WL 1551693, at *5 (Minn.
App. Apr. 18, 2016) (affirmi ng a city’s finding of no unique circumstances when t he
property shared the same physical characteristics as similar pr operties in the immed iate
area). The circumstance need not be limited to the physical characteristics or features of
the property itself, but may include those of the surrounding area so long as they cause the
property owner practical difficulties complying with the zoning code. See Neighbors for
E. Bank Livability , 915 N.W.2d at 517 –18. With this law in mind, we now turn to the
City’s findings for each variance.

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A. The City’s practical difficulty findings for the minimum loading
variance and the minimum rear yard setback variance were lega lly
insufficient.

For the minimum loading variance and the minimum rear yard setback variance, the
City found that “a practical difficulty exists due to the current zoning code, which makes
it difficult to create a contemporary apartment building on this site which would meet all
of those standards.” One of the planning commissioners reinforced this finding during the
hearing, saying,
As it relates to practical difficulty, these [variances] relate to
the intensity of development, location of the building . There
are practical difficulties associated with the current zoning
code. I think whether it’s the R5 or OR2 district , it’s difficult
to fit a contemporary building on a site like this or elsewhere
in the city and meet all of those [zoning] standards.

We read this finding to say that the zoning code is the unique circumstance of the property
that made it difficult for Yellow Tree to build its project on the property or elsewhere in
the city.
The City’s finding is legally insufficient because it does not point to a circumstance
unique to the property . The fact that “the current zoning code . . . makes it difficult to
create a contemporary apartment building on this site” is not a circumstance unique to the
property. The City found that Yellow Tree had practical difficulties building its project in
compliance with the zoning code because the zoning code made it difficult to build the
project at the site. Under this circular reasoning, all requests for variances from the zoning
code automatically have a practical difficulty because the zoning code prevents the
proposed use . It destroys the requirement that a practical difficulty be due to a

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circumstance unique to the property. The circumstance unique to the property must be a
feature or characteristic w hich—by its existence —causes the property owner difficulty
conforming their proposed use to the zoning code. Here, the zoning code applied to the
project site did not cause Yellow Tree’s difficulty conforming the project to the zoning
code. Beyond the illogical nature of this finding, we find no c aselaw suggesting that the
zoning code can be a circumstance unique to the property. As explained above, our caselaw
confirms that the circumstance must be some feature or characteristic of the property or
surrounding area, not the generally applicable zoning code.
We are not convinced by the City’s argument that this finding actually describes the
unique circumstance that the building site could not meet all the standards in the zoning
code. The language o f the finding clearly describes the zoning code as the circumstance
unique to the property, not the building site’s inability to comply with the code. The City
points to nothing in the record that supports its alternative interpretation of this language.
Even if we accepted the City’s interpretation, the finding would still fail to point to any
feature or characteristic of the property or surrounding area, or explain how it creates a
practical difficulty.
This finding fails to identify any features or cha racteristics of the property or
surrounding area that caused Yellow Tree practical difficulties in building its project with
one loading space and a 15 -foot rear yard setback as required by the zoning code. The
finding is legally insufficient. This was the City’s sole practical difficulty finding for these
variances, so the City’s decisions to grant these variances were unreasonable, arbitrary, and
capricious.

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B. The City’s practical difficulty finding for the maximum lot coverage
variance was legally insufficient.

The City made two practical difficulty findings for the variance to increase the
maximum lot coverage. The first was the legally insufficient finding discussed above,
which we hold to be insufficient for this variance as well. The second finding was that
practical difficulties exist for Yellow Tree complying with the lot coverage requirement
because “[c]ity policies that call for active ground floor uses and the amount of parking
and circulation space needed to meet the minimum parking requiremen t . . . result[] in a
building footprint that is larger than what is allowed in the OR2 zoning district.” The
zoning code governs active ground floor uses and the design of parking areas. See, e.g.,
MCO § 535.60 (2009) (Active Ground Floor Functions); MC O ch. 541 (2000–2019) (Off-
Street Parking and Loading). The finding explains that specific requirements of the zoning
code forced Yellow Tree to design a project with a building footprint larger than that
allowed in the OR2 zoning district. We again reject the City’s argument that this find ing
actually refers to the building site being unable to meet the zoning requirements. As with
the previous finding, this one focuses entirely on difficulties created by the zoning code
that prevent Yellow Tree from building its project as designed, which are not circumstances
unique to the property. This finding is legally insufficient because it fails to establish a
circumstance unique to the property. T he City failed to provide any legally sufficient
reasons to grant this variance, so its decision was unreasonable, arbitrary, and capricious.

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C. The City’s practical difficulty findings for the front yard setback
variances were legally insufficient.
The City made the same findings for both variances to r educe the front yard
setbacks. The first was the legally insufficient finding discussed in II.A. , which we hold
to be insufficient for these variances as well. The City also found that
practical difficulties exist in complying with the front yard
setback requirement due to the unique circumstance of having
two front yards, one along Blaisdell Avenue and one along
26th Street. The residential structure to the north, which sets
the established front yard requirement along Blaisdell, is
uniquely situated with a setback that greatly exceeds the
district minimum setback. The minimum front yard setback
requirement in the OR2 zoning district is 15 feet. However,
based on the established placem ent of adjacent buildings, the
site is subject to an increased front yard setback of 19.7 feet
along 26th Street and 33.5 feet along Blaisdell Avenue. . . . The
presence of two front yards, each with established setbacks that
exceed the district minimum, l imits the amount of buildab le
area on site and creates a practical difficulty.
Though the finding identifies a unique circumstance of two front yards, it still fails because
this circumstance does not create practical difficulties for Yellow Tree to comply with the
front yard setbacks.
The finding says that Yellow Tree’s practical difficulty complying with the front
yard setbacks arises because the front yard setbacks on th e property exceed the 15 feet
normally required in the OR2 zoning district, excessive ly limiting the area on which
Yellow Tree is allowed to build. The logical solution would be to grant variances reducing
the setbacks to the 15 feet normally required in an OR2 district, which would eliminate the
excessive setbacks and increase the builda ble area. But the variances here reduce both
setbacks to one foot, suggesting that Yellow Tree would still encounter a difficulty even if

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the property were zoned for the normal 15-foot setbacks. The variances greatly exceeded
the difficulty found by the City, meaning this finding does not legally support those
variances.
In addition to the disconnection between the finding and variances, the City’s
finding is legally insufficient because it points to the zoning code as the source of the
practical difficulty. The two front yards and surrounding buildings mentioned in the
finding may be unique circumstances, but they do not themselves reduce the buildable area.
Instead, the zoning code increases the front yard setbacks because of those circumstances,
which reduces the buildable area. The finding says that the front yard setbacks established
by the zoning code reduce the buildable area, which creates Yellow Tree’s practical
difficulty complying its project with the front yard setbacks established by the zoning code.
It is the zoning setbacks themselves that constrain the buildable area. The zoning code is
not a circumstance unique to the property, and the City cannot point to the operation of the
zoning code as the source of Yellow Tree’s practical difficulty justifying the variance from
the zoning code. This finding is legally insufficient because it fails to identify a practical
difficulty due to circumstances unique to the property. T he City failed to provide any
legally sufficient reason to grant thes e variances, so its decisions were unreasonab le,
arbitrary, and capricious.
II. The City ’s decision to grant the CUP was unreasonable, arbitrary, and
capricious.

Tulien contends that the City lacked a reasonable basis for granting the CUP
applications because the record does not provide sufficient factual support. We review the

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City’s grant of the CUP applications under the same standards as the variances. See
Schwardt v. C nty. of Watonwan , 656 N.W.2d 383, 386 (Minn. 2003). The Planning
Commission must make findings under six factors before granting a CUP. MCO § 525.340
(2019); Neighbors for E. Bank Livability, 915 N.W.2d at 510 n.12. The City need not make
each finding explicit, so long as we can determine that the “order granting a CUP . . .
demonstrate[s] the board’ s conclusion that the proposal has satisfi ed each of the zoning
ordinances conditions for approval.” Schwardt, 656 N.W.2d at 389. We conclude that, of
the six required factors, the City failed to consider possible injuries to the use and
enjoyment of nearby property, so it could not have reached any conclusion on that factor .
MCO § 525.340(2) (“The conditional use will not be injurious to the use and enjoyment of
other property in the vicinity . . . .”).
We examine the City’s order and the record for any indication that the City
considered the possible injury to the use and enjoyment of nearby property. See Schwardt,
656 N.W.2d at 389. Despite evidence suggesting that injuries were possible, t his record is
devoid of any indication that the City considered and rejected those possible injuries. The
City’s resolution and the minutes from the hearings fail to discuss or even hint at this
finding. If the record contained no evidence that the CUP risked injuring the use and
enjoyment of surrounding property, the City would not need to discuss those nonexistent
injuries, and we could infer that their grant was legally sufficient. But here, t he Planning
Commission and City Council were aware that the increased building height permitted by
the CUP might impact the use and enjoyment of surrounding property. Two residents
submitted comments that the building’s height would cause it to shadow their proper ty

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throughout the year, and the height of the building’s party deck would injure their private
use of their backyards by allowing people on the deck to look down into their backyards .
Yellow Tree’s shadow study shows that the project will shadow neighbori ng houses
throughout the year. The CPED highlighted the shadow study in its report to the Planning
Commission. Also, Yellow Tree’s project proposal shows that the party deck on the upper
floors faces the backyards of the neighboring houses, allowing views into those backyards.
In the face of this evidence, the City needed to consider and reject those possible injuries
before it could reach any conclusion on this factor. The record fails to show that the City
gave any consideration to those injuries or t he finding generally, so we can only conclude
that the City failed to give the consideration legally required. The City’s failure to consider
this required factor renders its reasons for granting the CUP legally insufficient, and its
decision unreasonable, arbitrary, and capricious.
III. Statutory Preemption Argument
Tulien also argues that the MPA, Minnesota Statutes sections 462.354 and .357,
subdivision 6, preempts the City’s process for approving variances through the Planning
Commission. The district cour t held otherwise in its summary judgment. On appeal,
Tulien indicates that he was injured by this variance approval process because he “has a
right to have decisions affecting him made by the correct body as provided by the MPA,”
and the City violated tha t right with its illegal process. Tulien stops at the step of asking
us to interpret the statute differently than the district court, but h e does no t explain what
relief he could experience through this different interpretation. To the extent Tulien makes

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this argument in support of us reversing the variances and CUP, we need not address it
because we reverse on other grounds.
IV. Conclusion
The City failed to find any legally sufficient practical difficulties to support its
decisions to grant the variances and failed to consider whether the CUP would impact the
use and enjoyment of surrounding property as required by the MCO and MPA. We reverse
the variances and CUP as unreasonable, arbitrary, and capricious.
Reversed.