Lawrence J. Culligan, et al., Trustees of Lawrence J. Culligan Revocable Trust under Agreement dated June 21, 2001, as amended, Respondents,

This opinion is nonprecedential except as provided by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
A21-1708

Lawrence J. Culligan, et al., Trustees of Lawrence J. Culligan Revocable Trust
under Agreement dated June 21, 2001, as amended,
Respondents,

vs.

The City of Mendota Heights,
Appellant.

Filed July 25, 2022
Reversed
Hooten, Judge*

Dakota County District Court
File No. 19HA-CV-21-527

Mark W. Vyvyan, Christian V. Hokans, Fredrikson & Byron, P.A., Minneapolis,
Minnesota (for respondents)

James J. Thomson, Michelle E. Weinberg, Kennedy & Graven, Chartered, Minneapolis,
Minnesota (for appellant)

Considered and decided by Bjorkman, Presiding Judge; Segal, Chief Judge; and
Hooten, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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NONPRECEDENTIAL OPINION
HOOTEN, Judge
Appellant-city asks this court to reverse the district court’s determination that the
city council’s denial of respondents’ development application was arbitrary and capricious.
Because we conclude, based upon the record, that the city council’s denial of respondents’
application was not arbitrary and capricious, we reverse.
FACTS
Respondents Larry and Mary Culligan own property in the City of Mendota Heights
(the City). The property is 6.76 acres, zoned as low-density/one-family residential and
located in the Mississippi River Corridor, a Critical Area Overlay District. The Culligans,
who had previously developed adjacent property in the area, proposed to subdivide the
remaining property that they owned located on a bluff above Mendota. Under the appellant
City’s code, the developer in a Critical Area Overlay District is required to have a critical
area permit (CAP) and a conditional use permit (CUP) for development on slopes between
18% and 40%. The proposed property contains slopes exceeding 18%.
On June 29, 2020, the Culligans sought the City’s approval of their plan to subdivide
the property and to obtain a CAP, a CUP, and approval of variances for a roadway to the
property and retaining walls. The Culligans worked with Loucks, Inc., a civil engineering
firm, in preparing the application. Loucks prepared a stormwater management report, a
slope analysis, and a grading plan sheet to support the Culligans’ application. The Culligans
also worked with the City’s engineer, Ryan Ruzek, and the City’s community development
director, Tim Benetti.
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Benetti prepared a staff report for the City’s planning commission about the
Culligans’ June 29 application. The planning commission recommended to the city council
whether to approve or deny applications. The city council then voted on whether to grant
or deny the permits. Benetti commented on the detailed nature of the slope analysis plan
and the grading plan. Benetti concluded “the proposed development meets the[] objectives”
required for a CAP because the development application “does not impact shoreline or
bluff areas.” At the July 28, 2020, public hearing, however, Benetti recommended that the
planning commission “table” making any recommendation on the application pending
additional review of the application by the Parks and Recreation Commission and further
consideration by Benetti and Ruzek following “a full soil report with boring analysis for
city staff to review.” The planning commission heeded Benetti’s advice and tabled any
recommendation until after hearing the Culligans’ presentation and other public comments.
On October 5, 2020, the Department of Natural Resources (the DNR) sent a
memorandum to the planning commission about the Culligans’ application. The
memorandum outlined the DNR’s concerns that “[t]he exposed rock and sediment in bluff
complexes along the Mississippi River Corridor are naturally vulnerable to failure.” The
DNR also noted the City’s definition of “bluffs” as slopes greater than 40% while the
statewide definition included slopes greater than 18%.
On October 8, 2020, the Culligans again presented their initial application along
with recent soil borings and stability analyse s performed by Braun Intertec. The planning
commission expressed concerns regarding the DNR memorandum. The planning
commission also heard from a hydrogeologist, Kelton Barr, who was retained by a group
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of neighbors opposed to the development. Barr prepared a preliminary report and agreed
his main “impediment to rendering any real opinion on this [matter was] the lack of deeper
borings.” At the conclusion of the hearing, the planning commission unanimously voted to
recommend denying the whole application.
After the October 8 hearing, the Culligans developed an amended development
application designed to address the concerns expressed during the hearing and by the DNR
memorandum. These changes included an additional boring analysis, reduced the number
of lots from eight to five, and eliminated the need for variances . While the amended
application removed the need for variances, the application still required a CAP and a CUP.
Following the Culligans’ amended application, Benetti prepared a second
supplemental staff report for the planning commission. Benetti recommended, in
compliance with a DNR request, that the Culligans grant a conservation easement on the
property to ensure no trees be removed “at or below the contour line” to “maintain stability
and minimize erosion on the bluff and to retain visual quality of the Critical Area.” Benetti
still concluded “the proposed development meets” the objectives of a CAP. Benetti added,
about granting a CUP, that the application “appears to be in general conformance with the
spirit and intent of the critical area district and comprehensive plan” and the application
“appears to meet the findings required [] to issue a conditional use permit.”
On November 24, 2020, the Culligans presented the amended application to the
planning commission. The planning commission expressed concern over the slope grades
on the proposed lots because the slope must be under 18% for a structure to be built, but
each proposed lot had slope grades over 18%. Benetti explained that the future landowners
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may need to apply for a “separate critical area permit” and show the area was “buildable.”
One member of the planning commission commented that this would be “kicking the
proverbial can down the road as respects to the buildable area test.” The Culligans stated
they believed future permits would not be required. Neighbors of the proposed subdivision
challenged the Culligans’ application, including the former mayor of Mendota, Bob
Bruestle. Former mayor Bruestle lives below the pond that is “supposed to capture the
water for the Culligan addition.” Bruestle provided testimony about the current water
runoff from the Culligan property causing flooding in his basement. After hearing
testimony, the planning commission unanimously voted to recommend the city council
deny the Culligans’ application.
The City retained Barr Engineering1 as an independent evaluator of Braun’s analysis
in the Culligans’ application. The City received Barr Engineering’s written report on
November 24, 2020. Bar r Engineering found Braun’s analysis was “generally consistent
with the stand ard of care for a preliminary geotechnical evaluation” and the soil borings
were “consistent with Federal Highway Administration guidelines.” The report, however,
noted the placement of the proposed stormwater pond could “contribute to slope instability
if not appropriately considered in design.”
On December 1, 2020, the city council considered the Culligans’ application. The
council split 2-2 on approval of the proposed project. Council members stated concerns
about the stormwater pond, as raised in Barr Engineering’s report, as well as the slope

1 Barr Engineering is not affiliated with the hydrologist Kelton Barr.
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grade on the lots, as raised by the planning commission. A council member raised the issue
that 100-year storm events are occurring much more frequently and that the safeguards in
place are inadequate to handle multiple 100- year storm events in a short period of time
because the stormwater pond is “built based on a hundred-year storm event.” The city
council tabled the decision until December 15, 2020, when a council member would be
elected to fill a vacant seat on the council.
At the December 15 city council meeting, the Culligans presented their application
and answered the council’s questions. Council members questioned the possibility of the
stormwater pond leaking because of a small channel underneath the pond, as had occurred
in one other situation, and about the placement and depth of the boring analysis, because a
recent project in the area failed. The current mayor of Mendota, Brian Mielke, commented
on being the “downhill neighbors of th[e] potential development” and testified that “water
issues” began after previous Culligan developments and now “water comes through in the
soil [from the bluffs] 365 days a year.” One council member also commented that if the
Culligans “can’t tell [him] with 100 percent certainty yet that it’s not gonna fail, [he’s]
worried about it.” After the Culligans’ experts addressed these concerns, the mayor of
Mendota Heights responded that “a hundred percent guarantee on anything is totally
unrealistic.” Three of the five council members voted to deny the Culligans’ amended
application.
On February 24, 2021, the Culligans filed a complaint against the City in district
court. Both parties moved for summary judgment. In a November 5, 2021, written order,
the district court reasoned the city council acted arbitrarily and capriciously in denying the
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Culligans’ application for a CAP and CUP because the application met the criteria for a
CUP and the city council’s “reliance on the health and safety of public” to deny the permits
is “based solely on unsubstantiated worries.” The district court, therefore, denied the City’s
motion for summary judgment, granted the Culligans’ motion for summary judgment, and
awarded the Culligans fees and costs.
The City appeals.
DECISION
“Our standard of review is a deferential one” in reviewing “decisions about special
use permits.” Schwardt v. Cnty. of Watonwan, 656 N.W.2d 383, 386 (Minn. 2003). “We
will reverse a governing body’s decision regarding a conditional use permit application if
the governing body acted unreasonably, arbitrarily, or capriciously.” RDNT, LLC v. City of
Bloomington, 861 N.W.2d 71, 75-76 (Minn. 2015) (citations omitted). We use a two-step
test to determine “whether a city’s denial was unreasonable, arbitrary, or capricious. First,
we must determine if the reasons given by the city were legally sufficient. Second, if the
reasons given are legally sufficient, we must determine if the reasons had a factual basis in
the record.” Id. The challenger has the burden to demonstrate that a city council’s decision
is arbitrary and capricious. Bill Graham Evangelistic Ass’n. v. City of Minneapolis, 667
N.W.2d 117, 123 (Minn. 2003).
“We do not give any special deference to the conclusions of the [district] courts, but
rather engage in an independent examination of the record and arrive at our own
conclusions as to the propriety of the city’s decision.” Mendota Golf, LLP v. City of
Mendota Heights, 708 N.W.2d 162, 180 (Minn. 2006). “As a reviewing court, we will not
8
retry facts or make credibility determinations, and we will uphold the decision if the lower
tribunal furnished any legal and substantial basis for the action taken.” Staeheli v. City of
St. Paul, 732 N.W.2d 298, 303 (Minn. App. 2007) (quotation omitted).
For the city council’s denial of the Culligans’ application to be upheld, the decision
must be “legally sufficient.” See RDNT, 861 N.W.2d at 75-76. Here, the framework we use
to determine legal sufficiency is an analysis of the City Code. Under the City Code to grant
a CUP, the city council must make four findings: (1) the proposed use is consistent with
the intent of the critical area and the city’s comprehensive plan; (2) the proposed use is
compatible with uses in the immediate vicinity; (3) the proposed use is allowed under the
applicable ordinances of the City; and (4) the requesting party notifies the DNR for review
and comment. Mendota Heights, Minn., City Code (MHCC) § 12-3-16 (2003). The City
Code also states that the intent of the Mississippi River corridor is to “prevent and mitigate
irreversible damage” and to “promote orderly development of the residential” area and that
preservation in “furtherance of the health, safety, and general welfare of the city” is a
priority. MHCC §§ 12-3-1, 2.
MHCC § 12-3-14 describes the “process for construction on property within the
critical area.” First, the City Code requires a CAP to build any structure or for any alteration
to the land. City Code requires a CUP for activity requiring a CAP if the activity is on
slopes greater than 18% but less than 40%. For new subdivisions, the City Code states, “the
subdivider shall be required to demonstrate that any newly created parcel will be able to
support a buildable area consistent with the underlying zoning regulations, on grades less
than eighteen percent (18%).”
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The city council relied on nine findings to support its decision to deny the Culligans’
application. Because all requirements of the ordinance must be satisfied to grant a CUP, a
supported factual finding that any requirement is not satisfied is sufficient for denial. See
RDNT, 861 N.W.2d at 75-76. We consider the city council’s first finding that:
The grading and heavy construction activity necessary to
achieve buildable areas on grades less than eighteen (18)
percent on the proposed lots endangers the safety and welfare
of adjoining properties as well as those below the proposed
development. There is an unjustifiable risk that erosion,
landslides, or other hydrological instability may occur.

The City correctly notes that preservation and “mitigation of irreversible damage”
is an intent of the Critical Area Overlay District. MHCC § 12-3-8(F)(1) states that risk of
unjustifiable risk of erosion and landslides makes a proposed subdivision “unsuitable.”
Because such a result would conflict with the “intent of the critical area,” granting a CUP
would violate MHCC § 12-3-16. Granting a CAP would conflict with MHCC § 12-3-14(E),
which requires that a subdivision shows a buildable area on grades lower than 18%. Thus,
the city council’s first finding is legally sufficient for denying the Culligans’ application.
The city council’s finding is also supported by facts in the record. Its decision relied
on the unanimous recommendation of the planning commission, the report and testimony
by Barr, neighbor testimony expressing safety concerns about instability of the bluff ,
testimony from University of Minnesota Professor Otto Strack, an expert in “soil
mechanics and groundwater flow mathematics,” and the DNR report expressing concern
about the project. While the record also contains expert testimony stating the application
should be granted, when reviewing expert witness testimony, we do not “attempt to weigh
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the credibility of conflicting experts, but instead review the record to ensure that the
decision . . . had support in the record.” Billy Graham Evangelistic Ass’n, 667 N.W.2d at
124.
The City aptly analogizes the legal analysis to RDNT, 861 N.W.2d at 77. In RDNT,
the supreme court decided Bloomington had a factual basis for denying a CUP because of
harm to “public health, safety, and welfare” based on conflicting evidence. Id. at 76.
Bloomington denied RDNT’s application to expand due to concerns about traffic and street
capacity. Id. Neighbors in the area RDNT wanted to expand presented “testimony about
how the [traffic] increase would exacerbate existing traffic conditions.” Id. at 77. Experts
in RDNT presented conflicting evidence. Id. at 76. The supreme court concluded that
because of the “traffic studies,” the expert testimony, and “the neighborhood testimony,”
Bloomington had an adequate factual basis to deny the CUP application. Id. at 77.
The Culligans argue RDNT is distinguishable. The Culligans’ argument, however,
depends on making credibility determinations between the experts. They contend the
experts in RDNT provided information specific to the intersection in question; while here,
the opposing experts provided only general analysis because they “did not perform any
analysis on the Property itself.” But our review of the record is limited to looking for
support of the decision made rather than weighing the credibility of expert testimony. Billy
Graham Evangelistic Ass’n, 667 N.W.2d at 124.
Here, the City’s legal argument is much like that in RDNT. The Culligans provided
expert testimony from Braun and Loucks which demonstrated the lots contained “buildable
areas” which presented low risk. However, the concerns raised by Barr and Professor
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Strack, the neighbors’ testimony, and the memorandum from the DNR create a conflict in
the evidence. Barr’s report challenged the placement and depth of the stormwater pond
which could lead to “instability.” Professor Strack commented on the “high-risk area” and
that there was still a lack of information necessary about soil stability to “make [the
application] safe” and that “a lot more data and a lot more sophisticated analysis” was still
needed. While Strack admitted he was “super conservative” in his approach, his testimony
still provides a factual basis contesting the expert testimony from the Culligans about the
needed preparation before beginning development.
Neighbors provided comments at hearings on the application expressing safety
concerns, specifically about “slope slide occurring that will affect [] homes” because of
“the many slope slides that have occurred in the region that contain the same soil mix and
plat formations” as the property. One neighbor questioned the methodology of the
Culligans because it failed to include “technologies out there that . . . provide . . . better
information that will answer the questions” raised about the proposed development. The
neighbor cited the Braun report presented by the Culligans does not consider “the potential
for deep-seated failure, failures that are based in the spring horizon and affect all of the
glacial sediment above it. Those kinds of failures have occurred along the river valley.”
Mayor Mielke of Mendota also testified there is “water coming from the ground to the
point where [people] can stick hoses in there and then water their plants with that kinda
water, . . . and that wasn’t like that before the Culligan development.”
The DNR was concerned that “[t]he exposed rock and sediment in bluff complexes
along the Mississippi River Corridor are naturally vulnerable to failure.” While the DNR
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stated it “is not in a position to evaluate [the Culligans’ expert] reports,” the DNR advised
the city council to “carefully consider” the expert reports prepared by both the Culligans
and the group of neighbors. The DNR’s concern stemmed from a 2015 study which “found
that bluff failures occurred where slopes had been modified for building foundations,
stormwater management facilities, or road construction, and that these modifications
contributed to the failures.” The DNR also expressed concern over nearby bluff failures in
2014. The City’s definition of bluff also differed from the statewide d efinition, as pointed
out by the DNR memo. The planning commission commented on this difference and noted
that the current city definition of bluff as a 40% grade is an “antiquated ordinance” which
will be “requested or mandated” to change to comply with statewide definition of “bluff”
as an 18% grade. The planning commission commented that “common sense . . . would
dictate” making decisions against “best-known practices,” but until the City adopted the
new standard, they were “obligated to follow the code that they have in place.”
In discussing the conflict between experts in RDNT, the supreme court explained
that “regardless of which [expert] estimate is more accurate, there [was] a factual basis in
the record” to support the City of Bloomington’s decision. Id. at 76. Here, the Culligans’
and neighbors’ expert reports create a similar factual basis for the city council’s denial of
the Culligans’ application.
The Culligans argue the correct burden of proof to apply for the factual basis
requires the finding to be “likely.” This argument is unpersuasive. The Culligans rely on
City Code § 12-3-8(F)(1), which states:
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No land shall be subdivided which is found to be unsuitable for
reason of flooding, inadequate drainage, soil and rock
formations with severe limitations for development, severe
erosion potential, unfavorable topography, inadequate water
supply or sewer disposal capabilities or any other feature likely
to be harmful to the health, safety or welfare of the future
residents of the proposed subdivision or the community.

The enumerated risks in the code include flooding, erosion, and unfavorable topography
before stating, “or any other feature likely to be harmful.” The “likely” language modifies
that catch-all provision of “or any other feature likely to be harmful.” “Likely” is not placed
before “unsuitable,” which would modify the entire enumerated list. Because the city
council found the “land to be subdivided . . . unsuitable for reason of flooding,” the city
council properly considered the factual burden.
The Culligans also argue the district court was correct in noting that denial of the
application cannot depend only on “concerns,” “doubts,” or “vague reservations.” See C.R.
Inv., Inc. v. Vill. of Shoreview, 304 N.W.2d 320, 325 (Minn. 1981). C.R., however, is
distinguishable. As noted in RDNT, the evidence in C.R. was limited to “‘the statement of
one council member that he had been told of a problem existing at one intersection and his
opinion that additional housing units might aggravate the problem.’” RDNT, 861 N.W.2d
at 77 (quoting C.R., 304 N.W.2d at 325). In this case, the concrete expert testimony, as
well the testimony from neighbors and the report from the DNR, created a conflict with the
Culligans’ expert testimony that was more than the “concerns,” “doubts,” or “vague
reservations” present in C.R. See id.

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The city council’s finding that the proposed development presents “an unjustifiable
risk” is, therefore, both legally sufficient and factually sufficient. B ecause we determine
the city council’s first finding is legally sufficient and the record contains facts supporting
the finding, we need not address the remaining findings by the city council.
However, if we were to address the additional findings, the same facts supporting
the city council’s first finding support the other findings. For example, the city council
found that the proposed “plat development is found to pose a threat and could cause
potential irreversible damage to this heavily wooded, natural and unique local area.” This
finding is legally sufficient because a subdivision that poses a threat of irreversible damage
is not a “proposed use [that] is consistent with the intent of the critical area and the city’s
comprehensive plan.” There are also facts in the record supporting this finding because of
the detailed testimony from neighbors and Professor Strack, and the reports from the DNR
and Barr Engineering. Thus, the city council’s finding that the proposed development is
inconsistent with the “intent of the critical area” would be legally and factually sufficient
to deny the Culligans’ application.
In conclusion, the Culligans did not meet their burden of demonstrating the city
council’s decision to deny their application for a CAP and CUP is arbitrary and capricious

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because the city council’s findings were both legally and factually sufficient to deny the
Culligans’ application.2
Reversed.

2 The City also initially challenged the district court’s award of attorney fees to the
Culligans. Respondents’ brief, however, stated that the district court “revers[ed] its
decision [on the fee award] after the City filed this appeal.” In the City’s reply brief, the
City acknowledged the district court “reversed its initial decision” on attorney fees, and the
City noted its “request that this [c]ourt reverse the District Court’s attorneys’ fee award is
now moot.” An issue on appeal is moot and need not be reached by a reviewing court
“when, pending appeal, an event occurs that makes a decision on the merits unnecessary.”
App. Of Minnegasco, 565 N.W.2d 706, 710 (Minn. 1997). “The mootness doctrine,
therefore, implies a comparison between the relief demanded and the circumstances of the
case at the time of the decision in order to determine whether there is a live controversy
that can be resolved.” Id. Here, as acknowledged by both parties, the district court reversed
the challenged fee award, rendering our review of the initial decision unnecessary. See id.