14 Cherrywood, LLC, Appellant,

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-1637

14 Cherrywood, LLC,
Appellant,

vs.

City of North Oaks,
Respondent.

Filed June 26, 2023
Affirmed
Ross, Judge

Ramsey County District Court
File No. 62-CV-22-1553

Jack Y. Perry, Brayanna J. Bergstrom, Taft Stettinius & Hollister LLP, Minneapolis,
Minnesota (for appellant)

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

Considered and decided by Wheelock , Presiding Judge; Segal , Chief Judge; and
Ross, Judge.
SYLLABUS
An alternative writ of mandamus cannot form the basis for awarding mandamus
damages under Minnesota Statutes section 586.09 (2022).
OPINION
ROSS, Judge
14 Cherrywood LLC applied to the City of North Oaks for a conditional use permit
to construct a nearly 45-foot-tall home and two garages totaling about 2,000 square feet.
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The city failed within 60 days to approve the application, deny the application, or notify
Cherrywood in writin g of its intent to extend the application -consideration period.
Cherrywood petitioned the district court seeking an alternative writ of mandamus for the
court to order the city to grant Cherrywood’s application and award mandamus damages.
Cherrywood based the petition on its position that its application had become automatically
approved under Minnesota Statutes section 15.99, subdivision 2(a) (2022), by virtue of the
city’s failure to act on it within the 60-day statutory period. The district court issued an
alternative writ, directing the city to show cause. After filing its answer, the city approved
Cherrywood’s application. The district court therefore dismissed Cherrywood’s petition as
moot. Cherrywood argues on appeal that the district court erred by failing to award
mandamus damages despite having granted Cherrywood’s petition for an alternative writ
and that its damages claim was not rendered moot by the city’s decision to approve
Cherrywood’s application. Because we hold that granting a petition for an alternative writ
of mandamus does not constitute being “given judgment” under Minnesota Statutes section
586.09, and because the district court issued no other judgment in Cherrywood’s favor and
Cherrywood was not otherwise entitled to receive one after its petition was rendered moot,
Cherrywood is not entitled to mandamus damages. We therefore affirm.
FACTS
Appellant 14 Cherrywood LLC applied to respondent City of North Oaks on
December 21, 2021, for a conditional use permit (CUP) to construct a home higher than 35
feet and two garages spanning more than 1,500 total square feet. City staff read the
application on January 4, 2022, noted concerns about the proposed construction, and
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internally recommended that the application- review period be extended to 120 days and
that the public hearing on the application be continued. But no one from the city timely
informed Cherrywood in writing that the city intended to extend the application-review
period. The city administrator wrote to Cher rywood’s owner on February 28, stating that
he had “inadvertently failed to notify [him] in writing by [the date ending the 60-day period
for the city to act on the application as set forth in Minnesota Statutes section 15.99,
subdivision 3(f) (2022)] that the City was extending the initial 60-day review period.” The
administrator purported to “advise” Cherrywood, “[T]he City is extending the period to act
on your application until April 20, 2022.”
Cherrywood’s attorney responded on March 9, demanding that the city “ratify [the]
February 20, 2022 ‘automatic’ approval of Cherrywood’s CUP application” based on
section 15.99, subdivision 2(a). The letter threatened a mandamus action to compel the
“City’s ‘automatic’ approval.” The city received a building-permit application from
Cherrywood’s contractor on March 15, but the city deferred any action on it. Cherrywood
demanded again on March 16 that the city ratify, in writing, the approval of its CUP
application. The city informed Cherrywood on March 24 that the planning commission had
recommended approving only the portion of the application relating to the garages’ excess
area but not the home’s excess height unless Cherrywood relocated the planned home.
Cherrywood immediately petitioned the district court for an alternative writ of mandamus,
seeking an order requiring the city to approve Cherrywood’s CUP application, awarding
mandamus damages for the city’s delay in approving the application, and providing any
other appropriate relief.
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The district court issued an alternative writ of mandamus on March 25, ordering the
city to either explain why it had not approved Cherrywood’s CUP application or file an
answer and proceed “in the same manner as a civil action” as directed by Minnesota
Statutes section 586.08 (2022). The city filed an answer on April 6, contesting
Cherrywood’s mandamus petition. B ut the city council then approved Cherrywood’s
application without qualification, and the city amended its answer to assert that the
mandamus petition was therefore moot. The city also issued the building permit.
Cherrywood moved for partial summary judgment to recover damages under the
mandamus statute based on the city’s delay in approving the CUP application. The city
filed a cross-motion for summary judgment. It maintained that, because it had approved
Cherrywood’s application and issued a building permit, there was no act that the court
could compel it to undertake. This, argued the city, rendered Cherrywood’s mandamus
petition moot, including any claim for damages.
The district court granted summary judgment favoring the city and dismissed the
mandamus action. The district court concluded that, because the city could not be
compelled “to do what it had a duty to do and has now done,” the court could not issue a
peremptory writ. And it decided that it therefore could not issue a judgment in favor of
Cherrywood or award mandamus damages. Cherrywood appeals the district court’s
decision not to award mandamus damages.
ISSUE
Did the district court erroneously refuse to consider Cherrywood’s claim for
mandamus damages?
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ANALYSIS
Cherrywood contends that the district court erroneously held that Cherrywood is not
entitled to a mandamus judgment, damages , and costs because it is not eligible for a
peremptory writ of mandamus. Cherrywood also appears to argue that the fact that its claim
for a peremptory writ of mandamus was rendered moot by the city’s approval of
Cherrywood’s application does not consequently render moot its ability to recover damages
and that it should have been allowed the opportunity to receive a judgment for damages
caused by the city’s delay in approving the application.
We review this case in the context of a premise that is arguably questionable but not
disputed by the parties. The parties presume that a writ of mandamus compelling a city to
approve a property owner’s land-use application is the proper avenue to respond to a city’s
failure to act on the application within the statutory period requiring action even when the
city has taken no official action contrary to the automatically approved application. The
parties did not convincingly explain why mandamus is the logical avenue to address the
city’s failure to timely act on Cherrywood’s CUP application. “Mandamus is an
extraordinary legal remedy.” Mendota Golf, LLP v. City of Mendota Heights, 708 N.W.2d
162, 171 (Minn. 2006) (quotation omitted); see also Coyle v. City of Delano, 526 N.W.2d
205, 207 (Minn. App. 1995) (requiring petitioners to demonstrate that they possess no other
adequate legal remedy before mandamus can issue). By comparison, in declaratory
judgment actions, “[c]ourts of record within their respective jurisdictions . . . have power
to declare rights, status, and other legal relations whether or not further relief is or could
be claimed.” Minn. Stat. § 555.01 (2022).
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Although we will resolve this dispute based on the parties’ presumption and
arguments, we pause to highlight the latent, presently uncontested issue appearing at the
intersection of the automatic-approval statute and the mandamus statute. Minnesota law at
once imposes a deadline for agency action on a written request related to zoning and
establishes the consequence for the agency’s failure to meet the deadline. The deadline is
plain: every agency, which includes a city, “must approve or deny [the written request]
within 60 days.” Minn. Stat. § 15.99, subds. 1(b), 2(a) (2022). The consequence likewise
is plain: “Failure of an agency to deny a request within 60 days is approval of the request.”
Id., subd. 2(a). This relationship between the statutory deadline and the consequence for
failing to meet it have resulted in the accurate colloquial label—automatic-approval statute.
Minnesota law also authorizes the district court to issue a writ of mandamus “to
compel the performance of an act which the law specially enjoins as a duty resulting from
an office, trust, or station.” Minn. Stat. § 586.01 (2022). Once a party has achieved
automatic approval under section 15.99, it need not seek any further approval from the
governmental entity that originally retained jurisdiction over the application because
approval under section 15.99 strips the entity of jurisdiction and the ability to act on the
application. Breza v. City of Minnetrista , 706 N.W.2d 512, 519 (Minn. App. 2005), aff’d,
725 N.W.2d 106 (Minn. 2006). Applying the plain language of these statutes, it is not
apparent why a district court should issue a writ of mandamus only to compel a city to
approve a land-use request that the city failed to timely decide and that, consequently, is
approved already by operation of law (unless the city has engaged in some official action
contrary to the effect of the automatically approved request). Cherrywood’s petition for a
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writ of mandamus highlights the seeming contradiction between the binding legal effect of
the automatic-approval statute and Cherrywood’s effort to obtain an order requiring the
city’s approval. The petition urged the district court to issue an order “grant[ing]
Cherrywood’s December 21, 2021 Application” after it asserted that “Cherrywood’s
December 21, 2021 Application was deemed approved upon expiration of the 60-day
deadline.”
Cherrywood’s mandamus petition and district court pleadings did not attempt to
explain why the district court should c ompel the city to approve an application that
Cherrywood knew had already been approved by law. Although the city had taken no
adverse action on Cherrywood’s building-permit application that Cherrywood based on its
automatically approved CUP, Cherrywood’s petition nowhere mentioned the city’s
obligation to address the building-permit application as a duty it sought to enforce through
the mandamus action. It is true that we once affirmed the district court’s decision to issue
a writ of mandamus after the local government had failed to timely act and had apparently
engaged in no official action that needed to be restrained to avoid interfering with the
automatically approved application. In Kramer v. Otter Tail County, we affirmed a writ
compelling a county to approve a preliminary plat for a new subdivision after we concluded
that, because the county failed in its duty “to approve or deny respondents’ [subdivision
plat] application within 60 days,” the “respondents’ application was approved by operation
of law” based on the automatic-approval statute. 647 N.W.2d 23, 26 (Minn. App. 2002).
We did so by reasoning that “[t]he county’s refusal to approve the plat was therefore a
failure to perform an official duty clearly imposed by law.” Id. But we too did not attempt
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to explain the merit of compelling a local government to approve an application that had
already been approved by operation of law although the county had apparently engaged in
no official action that was interfering with the approved application. See id. We have found
no explanation in any precedential Minnesota case, and our other cases that involve this
issue are easily distinguished. See, e.g., Am. Tower, L.P. v. City of Grant, 621 N.W.2d 37,
39 (Minn. App. 2000) (affirming mandamus after the city had not only failed to act on the
applicant’s request but also took additional official action “and denied the application”),
aff’d as modified, 636 N.W.2d 309 (Minn. 2001); Demolition Landfill Servs., LLC v. City
of Duluth, 609 N.W.2d 278 (Minn. App. 2000) (reversing district court’s dismissal of
mandamus petition after city passed resolution denying special use permit following
automatic approval of permit application), rev. denied (Minn. July 25, 2000), overruled by
Johnson v. Cook County, 786 N.W.2d 291 (Minn. 2010). In any event, the parties’
presumption on appeal as to the suitability of a mandamus action here leaves the latent
issue off our table.1
We turn to the limited question raised and the arguments presented. We must decide
only whether the district court erred by declining to award Cherrywood a peremptory writ
of mandamus and damages when it granted summary judgment in the city’s favor. We

1 The record reveals that the city did unsuccessfully argue to the district court that
mandamus is not an appropriate remedy as a matter of law. It argued specifically that,
because Cherrywood’s mandamus action urges the district court to order the city to approve
the CUP application after the deadline foreclosed the city from acting on the application,
“there is no longer any official duty for the city to act on the CUP application and therefore
no act for the court to compel the city to take.” But the city has not presented the argument
to us on appeal, and we decline to consider the issue as a potential basis to affirm given the
lack of appellate briefing on it.
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confidently conclude that the district court did not err because Cherrywood did not receive
a judgment in its favor and the district court did not otherwise improperly preclude
Cherrywood from seeking damages.
I
A district court must grant a motion for summary judgment “if the movant shows
that there is no genuine issue as to any material fact and the movant is entitled to judgment
as a matter of law.” Minn. R. Civ. P. 56.01. We review de novo the district court’s legal
conclusions on summary judgment and, in doing so, we consider the evidence in the light
most favorable to the party against whom the motion was granted. Comm. Bank v. W. Bend
Mut. Ins. Co., 870 N.W.2d 770, 773 (Minn. 2015). Our de novo analysis begins and ends
with the meaning and application of Minnesota Statutes section 586.09.
That statute is unambiguous: “A plaintiff who is given judgment, shall recover the
damage sustained, together with costs and disbursements, and a peremptory mandamus
shall be awarded without delay.” Minn. Stat. § 586.09. We will apply a statute’s plain
meaning when it is clear and unambiguous on its face. Minn. Stat. § 645.16 (2022); Am.
Fam. Ins. Grp. v. Schroedl, 616 N.W.2d 273, 277 (Minn. 2000). A plain reading of section
586.09 informs us that Cherrywood is not entitled to the damages it seeks. The statute
establishes that a successful plaintiff will receive a peremptory writ, damages, and costs
and disbursements. But it requires that the plaintiff must first obtain a judgment.
Cherrywood did not obtain the prerequisite judgment. The district court denied
Cherrywood’s motion for summary judgment on its mandamus petition, and Cherrywood
does not challenge that decision on appeal. Nor could it; by the time of the district court’s
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decision, the city had already officially ratified the automatic ally approved CUP
application and issued Cherrywood’s requested building permit to begin construction.
Cherrywood’s mandamus petition had asked the district court to order the city to ratify the
automatically approved CUP application and award damages as a result. “Generally, an
issue may be dismissed as moot if an event occurs that resolves the issue or renders it
impossible to grant effective relief.” Isaacs v. Am. Iron & Steel Co., 690 N.W.2d 373, 376
(Minn. App. 2004), rev. denied (Minn. Apr . 4, 2005). No controversy remained, and
Cherrywood received no judgment. Because it received no judgment, it could not be
awarded damages.
We are not persuaded otherwise by Cherrywood’s suggestion that, by granting
Cherrywood’s petition for an alternative writ of mandamus, the district court satisfied t he
judgment requirement of section 586.09. Contrary to Cherrywood’s contention that there
is no difference between an alternative and a peremptory writ of mandamus, receiving an
alternative writ—unlike receiving a peremptory writ— is not being “given judgment.” A
district court may issue either an alternative or peremptory writ of mandamus:
The alternative writ shall state concisely the facts showing the
obligation of the defendant to perform the act, and the
defendant’s omission so to do, and command the defendant
that immediately after the receipt of a copy of the writ, or at
some other specified time, the defendant do the required act, or
show cause before the court out of which the writ
issued . . . why the defendant has not done so.

Minn. Stat. § 586.03 (2022). It is true that an alternative writ might eventually lead to a
peremptory writ if a defendant does nothing in response. Minn. Stat. § 586.07 (2022). But
an alternative writ does not finalize the action. It affords the defendant the opportunity to
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explain why it should not be compelled to perform the duty it allegedly failed to perform.
The defendant may show cause by filing an answer. Minn. Stat. § 586.06 (2022); Spann v.
Minneapolis City Council, 979 N.W.2d 66, 71 n.4 (Minn. 2022) (outlining steps in a
mandamus action). An alternative writ therefore functions essentially like a summons in a
typical civil proceeding, allowing a defendant to respond to the mandamus petitioner’s
allegations. The alternative writ here is not a judgment given to Cherrywood.
We add that our understanding of the term “given judgment” supports our
conclusion that an alternative writ is not a judgment. Mandamus damages have been
available to successful mandamus petitioners in Minnesota since territorial times. The
version of the mandamus statute enacted in 1851, which remained in effect until it was
amended to its current language in 1986, contained slightly different wording: “If judgment
be given for the plaintiff, he shall recover the damages which he shall have sustained.”
Minn. Rev. Stat. (Terr.) ch. 83, § 15 (1851). The phrase “judgment be given” has appeared
in our caselaw in various contexts but always to finally dispose of a dispute. See, e.g.,
Holmes v. Loughren, 105 N.W. 558, 559 (Minn. 1906) (stating that “judgment be given for
the plaintiff” if he prevails on his claim in property dispute); Valley v. Crookston Lumber
Co., 151 N.W. 137, 139 (Minn. 1915) (reversing judgment for plaintiff in settlement
dispute, ordering that “[j]udgment should be given for defendant”); Hoidale v. Cooley, 174
N.W. 413, 414 (Minn. 1919) (using phrase “judgment be given in his favor” to describe
what plaintiff should have asked for to resolve dispute over insurance proceeds that were
solely awarded to intervenor-insurer). The same is true for the current statute’s term, “given
judgment.” See, e.g., Shepard v. Alden, 202 N.W. 71, 72 (Minn. 1925) (stating that a
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plaintiff who successfully proves conversion is “given judgment” for the value of
converted property); Wildung v. Sec. Mortg. Co. of Am., 173 N.W. 429, 430 (Minn. 1919)
(accepting appeal after plaintiff’s attorney was “given judgment” for costs and fees). The
finality required for a judgment to be “given” does not accompany an alternative writ.
Caselaw confirms our interpretation. In Nationwide Corp. v. Northwestern National
Life Insurance Co., the supreme court held that “under [section 586.09], damages are
recoverable as a matter of right upon the issuance of a peremptory writ of mandamus.” 87
N.W.2d 671, 686 (Minn. 1958) (emphasis added). The Nationwide court did not suggest
that an alternative writ could support the same damages award. We recognize that the
supreme court has commented that section 586.09 “permits a plaintiff who successfully
petitions for a writ of mandamus also to recover the damage he sustained in procuring it”
and that one might read this to broadly suggest that mandamus damages may follow a
successful petition for either an alternative or peremptory writ. City of Thief River Falls v.
United Fire & Cas. Co. , 336 N.W.2d 274, 276 (Minn. 1983). But this comment qualifies
only as dicta while deciding a different issue and merely discusses mandamus actions
generally. The comment therefore does not control our holding here. See Brink v. Smith
Cos. Constr., 703 N.W.2d 871, 877–78 (Minn. App. 2005) (observing that dictum
unrelated to the dispositive issue is entitled to little weight). And the other primary cases
Cherrywood cites do not address alternative writs and their relation to section 586.09 at all.
See City of Waite Park v. Minn. Off. of Admin. Hearings, 758 N.W.2d 347, 352–53 (Minn.
App. 2008) (resolving procedural question involving claim for damages made by
intervenor in mandamus action); Pigs R Us, LLC v. Compton Township, 770 N.W.2d 212,
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217 (Minn. App. 2009) (resolving questions related to the intersection of the Minnesota
Tort Claims Act and mandamus). Cherrywood cites no authority contradicting our holding
or rationale. An alternative writ is not a judgment and cannot form the basis for a
mandamus damages award.
Cherrywood raises other statutory-interpretation arguments, none convincingly. It
references the general canon of statutory construction that remedial statutes should be
interpreted liberally. See Blankholm v. Fearing, 22 N.W.2d 853, 855 (Minn. 1946). But
this canon cannot supplant the primary objective of statutory construction of remedial
statutes, which is to determine the intent of the legislature based on the language used. Id.
The general canon of liberal interpretation does not override the legislature’s conditioning
of mandamus damages on a judgment favoring the plaintiff.
Cherrywood compares section 586.09 to other statutes that expressly provide for the
award of damages as the result of a defendant’s actions. See, e.g., Minn. Stat. §§ 8.31, subd.
3a (private attorney general statute), 13.08, subd. 1 (data practices), 117.031 (a), (b)
(eminent domain) (2022). But the cited statutes require a party to establish liability before
becoming entitled to damages. This liability-then-damages approach aligns with receiving
a peremptory writ following a judgment, not embarking on additional litigation after an
alternative writ.
Finally, Cherrywood argues that our holding would frustrate the purpose of the
mandamus statute. That is, we should not interpret the statute in a way that would allow a
defendant to escape damages after a plaintiff successfully petitions for an alternative writ
of mandamus by immediately volunteering to perform the duty it allegedly failed to
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perform earlier. But the legislature chose to grant landowners automatic approval of their
land-use applications, not money damages, as the extreme remedy to prolonged
governmental inaction. In this case, Cherrywood received that remedy in the form of the
automatic approval of its CUP application with no need to engage in contested proceedings
to obtain the city’s consent and no need to relocate its planned buildings. We are satisfied
that this substantial remedy more fittingly meets the legislature’s intent in cases implicating
section 15.99.
II
We interpret Cherrywood’s brief as also contending that the district court
erroneously concluded that Cherrywood could not continue to pursue relief in the form of
damages once its underlying claim for a peremptory writ of mandamus was rendered moot
by the city’s actions. Cherrywood implicitly bases its contention on a theory that its desired
forms of relief, a peremptory writ and damages, are themselves severable claims or arise
from severable claims. We reject the theory.
A claim for mandamus damages is not severable from the underlying cause of action
forming the basis of the mandamus petition. Cherrywood petitioned the district court only
for a writ of mandamus, initiating an action that does not encompass any additional ,
independent cause of action for damages that could conceivably survive the dismissal of
the principal mandamus claim. Its desired relief of mandamus damages is inseparably
linked to its mandamus action. Again we look to the operative provision, which allows for
a mandamus judgment entitling the petitioner to a peremptory writ followed by damages
and costs: “A plaintiff who is given judgment, shall recover the damage sustained, together
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with costs and disbursements, and a peremptory mandamus shall be awarded without
delay.” Minn. Stat. § 586.09. The damages are a mere consequence of the judgment that
results in the peremptory writ. Cherrywood’s arguments do not convince us to treat the
request for damages as some sort of separate claim apart from the writ, allowing the former
to survive the mootness of the latter . Cherrywood acknowledges in its briefing that
“mandamus liability and damages cannot be separated” and cites caselaw supporting the
same. See City of Waite Park , 758 N.W.2d at 354–55 (stating that damages are
“inextricably tied to the mandamus cause of action”). We hold that the mootness of a claim
for a peremptory writ of mandamus renders the related damages claim also moot.
Cherrywood was therefore not entitled to a judgment for damages after its claim for
mandamus relief was rendered moot by the city’s actions.
DECISION
Cherrywood successfully petitioned the district court only for an alternative writ of
mandamus. An alternative writ of mandamus is not a judgment and therefore cannot form
the basis for a mandamus damages award under section 586.09, and Cherrywood was not
otherwise entitled to receive mandamus damages after its claim for a peremptory writ of
mandamus was rendered moot. The district court did not err by dismissing the mandamus
petition without awarding Cherrywood any damages allegedly resulting from the city’s
failure to timely act on Cherrywood’s CUP application.
Affirmed.