ROA Rochester, LLC, 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This opinion is nonprecedential except as provided by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
A25-0802

ROA Rochester, LLC,
Appellant,

vs.

City of Rochester,
Respondent.

Filed February 17, 2026
Affirmed in part, reversed in part, and remanded
Connolly, Judge

Olmsted County District Court
File No. 55-CV-23-6020

Bryan J. Huntington, Benjamin T. O’Laughlin, Larkin Hoffman Daly & Lindgren Ltd.,
Minneapolis, Minnesota (for appellant ROA Rochester, LLC)

Katherine M. Swenson, John M. Baker, Greene Espel PLLP, Minneapolis, Minnesota (for
respondent City of Rochester)

Considered and decided by Connolly, Presiding Judge; Bond, Judge; and Smith,
John P., Judge.
NONPRECEDENTIAL OPINION
CONNOLLY, Judge
Appellant challenges the district court’s grant of summary judgment in favor of
respondent-city in an appeal to the district court related to respondent’s denials of

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
appellant’s land-use application and respondent’s alleged violation of the Minnesota Open
Meeting Law (OML), Minn. Stat. §§ 13D.01-.08 (2024) . Respondent cross -appeals to
challenge the standard used by the district court to determine whether an email
communication from the city attorney was protected by the attorney-client privilege. We
affirm the district court’s grant of summary judgment in favor of respondent. But, because
the district court applied the wrong standard to determine whether the email
communication was protected by the attorney-client privilege, we reverse and remand for
the district court to apply the correct standard.
FACTS
This case concerns a parcel of land in Rochester , Minnesota (the property). The
property is owned by Aspire Properties, LLC, (Aspire) and is zoned as Mixed Use General
(MX-G).1 Beginning in 2021, Homestead United Methodist Church (the church), a place
of worship, began occupying the parcel directly north of the property. In August 2022,
appellant ROA Rochester, LLC, (ROA) entered a lease with Aspire for ROA to install a
billboard on the property. The underlying dispute in this case relates to ROA’s application
to place a billboard on the property and the subsequent proceedings by respondent City of
Rochester (the city) relating to whether it would approve the placement of the billboard.
ROA’s application for the proposed billboard
In December 2022, ROA filed an application for a sign permit with the city for the
installation of a 600 -square foot, one -sided digital billboard on the property. ROA

1 Aspire is a non-party to this litigation.
3
proposed that the digital billboard be oriented away from and not toward the church. City
staff members raised concerns with the permit due to an apparent conflict the billboard ’s
placement would have with Unified Development Code (UDC) § 60.400.110.G.l.d. This
section provides the following language and figure:
No billboard shall be located within 300 feet of a Place of
Worship, School, or Medical Facility. This distance shall be
measured from the nearest edge of the billboard to the Place of
Worship, School, or Medical Facility to the closest point on
any boundary line of the Place of Worship, School, or Medical
Facility property as shown in Figure 1d. This restriction only
applies to Place of Worship, School, or Medical Facility
properties that abut the same right-of-way where a billboard is
oriented, regardless of whether the billbo ard is located on the
same side or the opposite side of the right-of-way as the Place
of Worship, School, or Medical Facility.

UDC § 60.400.110.G.l.d.

4
In April 2023, ROA requested that the city issue a specific interpretation of the UDC
as it relates to ROA’s proposed billboard. ROA’s request included two proposed options
for where the billboard would be installed on the property. The city’s interpretation letter
stated that ROA’s proposed billboard locations would violate the UDC for being too close
to the neighboring church.
ROA applies to the zoning board of appeals for a variance
In May 2023, ROA submitted a variance application requesting to decrease the
required distance between the proposed billboard and the neighboring church from 300 feet
to approximately 165 feet, a 45% reduction in the distance requirement between a billboard
and a place of worship.
The zoning board of appeals (the board) denied ROA’s variance request by a vote
of 4-0 based on findings drafted by city staff members.2 The board’s written resolution set
forth its decision and incorporated the findings of city staff. The board determined that
ROA had failed to satisfy multiple variance criteria under the UDC.
ROA appeals to the Rochester City Council
In June 2023, ROA appealed the denial of the variance to the Rochester City Council
(city council). The city council is made up of 7 members: Council President Brooke
Carlson, and Councilmembers Mark Bransford, Molly Dennis, Patrick Keane, Kelly Rae
Kirkpatrick, Shaun Palmer, and Norman Wahl. The appeal was heard at the city council’s
July 24, 2023 regular meeting. The city council voted 5-2 to overturn the board’s decision

2 Three members of the board were absent.
5
and grant the variance. Council President Carlson and Councilmember Keane voted
against overturning the board’s decision.
The mayor vetoes the variance
City of Rochester Mayor Kim Norton vetoed the city council’s resolution on July
27, 2023. The mayor provided a memorandum explaining her decision. In the
memorandum, the mayor explained that she supported the city staff and the board, as well
as their interpretation of the UDC. The mayor also expressed concerns with the July 24
city council meeting stating that, given the quasi-judicial nature of the proceeding, she was
not “satisfied that sound judicial judgement based on the law was utilized in identifying [a]
rationale for over-riding the prior decisions of [c]ity staff and [the board].” The mayor also
stated the following:
I have serious concerns about the rationale given during the
City Council meeting on July 24, 2023, to interpret the laws
differently in the three (3) areas identified by staff as not
meeting the threshold required for the following reasons:
a. The site could be used in a reasonable manner without
the variance.
b. There is no existing practical difficulty or unique
feature of the site.
c. The variance could be detrimental to public health
and create a slippery slope for future billboard
variances.

The city attorney’s emails
On July 28, 2023, after the mayor’s veto had been announced, the city attorney
emailed the city council president, the mayor, cc’d city staff members, and bcc’d the
remaining members of the city council. The city attorney indicated that all city council
members were blind copied to avoid an unintended OML violation. The city attorney sent
6
the email to provide “guidance and caution” on the billboard matter, “as well as general
guidance related to quasi -judicial decisions.” Following that email, some city council
members responded to the city attorney by email or emailed each other. No subsequent
email correspondence ever included a quorum of the city council. The city attorney did
not label the email as privileged or confidential. The city produced this email in response
to ROA’s Minnesota Government Data Practice Act request after the proceedings had
concluded. Minn. Stat. §§ 13.01 -.90 (2024). Both parties agree that this email is not
protected by the attorney-client privilege.
ROA had sought a postponement on a motion to override the veto as
Councilmember Bransford could not attend the next regularly scheduled meeting. On
August 7, 2023, before the city council considered the motion to override the mayor’s veto,
the city attorney emailed the city council president, the mayor, cc’d city staff members,
and bcc’d the remaining members of the city council. Again, the city attorney indicated
that all city council members were blind copied to avoid an OML violation.
The motion to override the mayor’s veto
To override the mayor’s veto, five affirmative votes were needed by the city council.
See Rochester, Minn., City Code of Ordinances § 6.04 (2006). Later that day, at the next
regularly scheduled meeting, the city council considered the motion to override the veto,
and the motion failed. Councilmembers Palmer and Wahl voted to override the veto;
Council President Carlson, along with Councilmembers Dennis and Keane voted to uphold
the veto; Councilmember Kirkpatrick abstained; and Councilmember Bransford w as
7
absent. Because the motion to override the mayor’s veto failed, the board’s decision
denying the variance was upheld.
In discussing their votes, Councilmembers Palmer and Wahl maintained their
positions from the last vote. Councilmember Kirkpatrick chose to abstain given concerns
about the ability to be fair and make a just decision. Councilmember Keane and Council
President Carlson both maintained their votes against the variance.
Councilmember Dennis noted that in hindsight, she would not have wanted to vote
the way she did in the first city council vote, but that her prior decision reflected a lack of
information received due to censure and the lack of guidance from legal counsel.
Councilmember Dennis further provided that she spoke with constituents who raised
concerns to her, and that one constituent had expressed concerns with the billboard’s lights
and their impact on night driving . She then stated that “I wasn’t able to arti culate the
reasons that need[ed] to be a foundation” and that “I will change my view because of all
that I had presented and support the veto . . . ” In later interrogatory responses to ROA,
Councilmember Dennis stated that she had one communication with a resident of Ward 6
who “brought up that even if Councilmember Dennis trusted ROA to comply with the
conditions for the variance, the company could be sold in the future, and there was nothing
to ensure that a new company would comply.”
The district court proceeding
Following the city council’s vote on the motion to override the veto, ROA sued the
city, contending that a variance was not required by the UDC, that the denial of the variance
was illegal, and that the city violated the OML. ROA moved for an order compelling
8
discovery from the city and for a judicial determination of the scope of review. ROA
requested that the district court find that the record of decision was not clear and complete;
that the proceeding was unfair; that ROA may conduct discovery regarding information,
documents and communications involving the city council, city staff members , the city
attorney and the mayor; that the district court compel the depositions of the mayor, Council
President Carlson, Councilmembers Keane, Kirkpatrick, and Dennis, and a c ity staff
member; and that the district court find the city attorney’s emails to the city council and
city staff related to the variance request were not protected by the attorney-client privilege.
The city indicated that it would produce some of ROA’s requested items, including the
July 28 email from the city attorney, but otherwise opposed ROA’s motion and sought a
protective order barring the depositions.
The district court entered an order granting in part and denying in part ROA’s
motion. The district court concluded that the record of decision was partially incomplete
and allowed limited discovery to supplement the record. The district court denied ROA’s
motion to compel depositions but allowed ROA to serve limited interrogatories on
Councilmember Dennis. The district court determined that both the July 28 and August 7
emails from the city attorney were not protected by the attorney-client privilege and
compelled production. The district court denied ROA’s motion in all other respects.
The parties brought cross-motions for summary judgment. The district court
granted summary judgment to the city. The district court determined that ROA was not
entitled to a sign permit because the ordinance unambiguously prohibited the billboard;
9
that the decisions of the city council and the mayor were reasonable; and that the city
attorney’s emails did not violate the OML.
This appeal follows. The city cross-appeals, seeking review of the district court’s
decision that the August 7 email was not protected by the attorney-client privilege.
DECISION
On appeal, ROA argues that the district court erred by allowing only limited
supplementation of the record, concluding the relevant city code provision unambiguously
prohibited appellant’s proposed billboard , concluding that the city’s denial of a variance
application was not erroneous , and concluding that respondent did not violate the
OML. On cross-appeal, the city argues that the district court erred by applying the wrong
standard to determine whether the August 7 email communication was protected by the
attorney-client privilege.
I. The district court did not err in allowing ROA to conduct only limited
discovery and ordering limited supplementation of the record of
decision.

ROA argues that the district court erred when it denied ROA’s request to
supplement the record with additional documents and to conduct discovery and depositions
because the record of decision was not clear and complete and that ROA should have been
allowed to conduct full discovery. We disagree.
An appellate court reviews the record made before a municipal body “without
according any special deference to the same review conducted by the trial court.” Swanson
v. City of Bloomington , 421 N.W.2d 307, 311 (Minn. 1988) (quotation omitted). As part
of that review, the court determines whether the record was “clear and complete,” such that
10
review should be on the record. Id. at 313. However, “where a city has failed to make a
complete and adequate record of its proceedings,” the court may “require [the] city to prove
the basis of its decision.” Id. at 312. The parties may then expand the record through
discovery. See, e.g., Honn v. City of Coon Rapids, 313 N.W.2d 409, 415-16 (Minn. 1981).
A. The district court did not err in granting ROA only limited discovery.
“Where the municipal proceeding has not been fair or the record of that proceeding
is not clear and complete, Honn applies and the parties are entitled to a trial or an
opportunity to augment the record in district court. ” Swanson, 421 N.W.2d at 313. “The
meaningful review to which parties are entitled requires no less. ” Id. The court in Honn
addressed the procedure for augmenting the record in a declaratory judgment action
challenging a rezoning decision and held that, when the parties are entitled to a trial, the
evidence presented to the city council is relevant and should be included in th e trial, and
that “[n]ew or additional evidence may be received at trial, but it must be relevant to the
issues that were raised and considered before the municipal body. ” Honn, 313 N.W.2d at
416 (emphasis added).
Neither Swanson nor Honn supports ROA’s contention that, because the district
court found the record was partially incomplete, ROA was entitled to conduct full
discovery. Instead, the caselaw provides that when the record from a municipal proceeding
is not complete, the parties are entitled to “augment t he record in district court” based on
the relevance of the issues to the proceedings. Swanson, 421 N.W.2d at 313. Here, after
the district court determined the record was partially incomplete, it properly augmented the
record by allowing ROA to serve written interrogatories on Councilmember Dennis related
11
to limited relevant issues and by adding the July 28 email from the city attorney to the
record. This limited expansion of the record is supported by caselaw which has recognized
that, except in rare cases, “it is the duty of the judiciary to exercise restraint and accord
appropriate deference to civil authorities in the performance of their duties.” White Bear
Docking & Storage, Inc. v. City of White Bear Lake , 324 N.W.2d 174, 176 (Minn. 1982).
This is not a rare case warranting departure from this principle.
Accordingly, the district court did not err in granting ROA only limited discovery.
B. The district court did not err in denying ROA’s request to add to the record
of decision email messages from non -decision-makers that were never
received by any decision-makers.

When deciding whether to supplement a municipal record, this court has
consistently held that the record should not be supplemented with information that was not
before the municipal body at the time of its decision. See In re Stoick Creek, LLC , 999
N.W.2d 915, 925 (Minn. App. 2023) (denying the parties’ motion to supplement the record
as “[n]either party ha[d] clearly demonstrated that supplementation [was] necessary to
ensure that the record before this court accurately reflect[ed] the record that was before the
town board at the time of its decision”); see also Rostamkhani v. City of St. Paul , 645
N.W.2d 479, 484 (Minn. App. 2002) (granting the city’s motion to strike certain documents
from the record as “there [was] no evidence in the record that this information had been
provided to the council and was simply omitted or misstated [,]” but denying the city’s
motion to strike a material document from the record that was received by a city council
member prior to the meeting); Herbst v. City of Deephaven , N o. A24 -0987, 2025 WL
1023871, at *4 (Minn. App. Apr. 7, 2025) (stating that there was “no reason to supplement
12
the record” with email communications that allegedly demonstrated the city’s bias as the
city council did not consider the material in its decision -making process) ,3 rev.
denied (Minn. July 15, 2025) . As such, for ROA to argue successfully that the district
court erred when it declined to supplement the record , ROA must demonstrate that the
emails were received by decision-makers at the time their decisions were made. Each of
the emails that ROA sought to include in the record of decision will be analyzed in turn.
The first email ROA sought to add to the record of decision is an email from one
city staff member to another requesting materials to “build[] our case around the negative
impacts billboards have on communities.” ROA has presented no evidence that this email
was sent to the decision-makers at the time of their decision. As such, the district court
properly excluded this email from the record of decision.
The second email ROA sought to add to the record is an email between two
members of city staff with suggestions for a draft email to the mayor and the city council.
However, this email does not indicate that it was sent to decision-makers. Notably, the city
has already disclosed a revised version of the email that was sent to the mayor and all city
council members. As such, the district court properly excluded this email, a draft which
was never actually sent to decision-makers, from the record of decision.
The third email ROA sought to add to the record is an email from the city attorney
to a non-decision-maker where he refers to an individual as “obnoxious.” ROA claims the
individual being referred to by the city attorney is one of ROA’s employees. However, as

3 Nonprecedential opinions may be cited as persuasive authority. See Minn. R. Civ. App.
P. 136.01, subd. 1(c).
13
this email does not reflect that it was sent to a decision-maker, the district court properly
excluded this email from the record of decision.
The fourth email ROA sought to add to the record is an email between two city
employees where one employee states he does not care what happens with the billboard
but has to “pretend it’s a huge deal based on the rules!” As this email does not reflect that
it was sent to a decision -maker, the district court properly excluded this email from the
record of decision.
The final email ROA sought to add to the record is an exchange between the city
attorney and city staff members. The email is a draft of the July 28 city attorney ’s email.
The version of this email that was sent to decision -makers has already been disclosed in
the record of decision. As such, the district court properly excluded this email, a draft
which was never actually sent to decision-makers, from the record of decision.
In sum, the district court did not err in declining to add any of these emails to the
record of decision. To the extent ROA suggests that these emails implicated an underlying
bias from city employees that carried over into their ultimate recommendations to decision-
makers, the reports themselves are included within the record of decision and can be
analyzed for their reasonableness.
Accordingly, the district court did not err in denying ROA’s request to supplement
the record with emails that were not sent to, or considered by, any decision-makers.

14
C. The district court did not err in denying ROA’s request to add to the record
of decision depositions of the mayor, city council members, and a city staff
member.

“[P]ublic policy requires that the time and energies of public officials be conserved
for the public’s business.” Ellingson & Assocs., Inc. v. Keefe, 396 N.W.2d 694, 696 (Minn.
App. 1986) (quotation omitted). Given “the volume of litigation to which the government
is a party,” this court has recognized that “a failure to place reasonable limits upon private
litigants’ access to responsible governmental officials as sources of routine pre -trial
discovery would result in a severe disruption of the government’s primary function.” Id.
at 696-97 (quotation omitted). In cases involving city council members, depositions are
“the most burdensome and disruptive form of discovery .” Stone’s Auto Mart, Inc. v. City
of St. Paul, Minn., 721 F. Supp. 206, 211 (D. Minn. 1989).
Here, ROA sought the depositions of the mayor and multiple city council members
to demonstrate that their decisions were “tainted by bias and consideration of incorrect
factors.” However, the record of decision provides the basis for each of these decisions.
The mayor, after vetoing the city council’s decision to overturn the board’s denial of the
variance, provided a written explanation for her decision. This document is included in the
record of decision. Further, the entire transcript of the August 7, 2023, city council meeting
on the motion to override the mayor’s veto is included in the record of decision. In the
transcript, numerous councilmembers provide a basis for their decision. This includes a
discussion from councilmember Kirkpatrick on her decision to abstain.
Given the completeness of the record on this issue, and the burden and disruption
these depositions would place on the city, the district court did not err in determining that
15
these depositions would be “cumulative and burdensome.” Further, ROA’s request to
depose a city staff member—a non-decision-maker whose reports are included within the
record of decision and can be analyzed for their reasonableness—is unnecessary and overly
burdensome.
Accordingly, the district court properly denied ROA’s request to add to the record
of decision the depositions of the mayor, certain city council members, and a city staff
member.
II. The district court erred in substituting the standard for closing a city
council meeting under the Minnesota Open Meeting Law in place of the
Minnesota Supreme Court’s standard for the attorney-client privilege.

The city argues that the district court applied the wrong legal standard to determine
whether the August 7, 2023, city attorney email was privileged. Specifically, the city
contends that the district court incorrectly relied on caselaw which addressed closing a city
council meeting under the OML instead of applying the supreme court’s standard to
determine whether a document is privileged. We agree.
The attorney-client privilege exception to the OML allows a public body to close a
meeting to discuss pending or prospective litigation. See Minneapolis Star & Trib. Co. v.
Hous. & Redevelopment Auth. In & For City of Minneapolis, 251 N.W.2d 620, 626 (1976);
see also Prior Lake Am. v. Mader , 642 N.W.2d 729 , 737 (Minn. 2002) . The caselaw
provides that the attorney -client privilege exception to the OML applies only when there
is a need for “absolute confidentiality.” Id. In reliance on this caselaw, the district court
determined that the city had not demonstrated the August 7 email required the need for
absolute confidentiality, and as a result, that the attorney-client privilege did not apply to
16
the email. However, as the district court had already concluded that there was no open
meeting for purposes of the August 7 email, its reliance on cases analyzing the attorney -
client privilege exception to the OML was erroneous. Instead, the district court should
have applied caselaw analyzing whether a document from an attorney to their client is
protected under the attorney-client privilege, as privilege is a distinct basis to withhold a
document.
The attorney-client privilege applies:
(1) Where legal advice of any kind is sought (2) from a
professional legal adviser in his capacity as such, (3) the
communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance permanently
protected (7) from disclosure by himself or by the legal adviser,
(8) except the protection be waived.

Energy Pol’y Advocs. v. Ellison , 980 N.W.2d 146 , 152 (Minn. 2022) (quoting Kobluk v.
Univ. of Minnesota , 574 N.W.2d 436 , 440 (Minn. 1998) (quotation omitted) ). “ The
purpose of the privilege is to encourage the client to confide openly and fully in his attorney
without fear that the communications will be divulged and to enable the attorney to act
more effectively on behalf of his client.” Kobluk, 574 N.W.2d at 440 (quotation omitted).
Accordingly, we reverse and remand for the district court to apply the correct
standard to determine whether the August 7 email was protected by the attorney-client
privilege.

17
III. The district court did not err in determining that ROA was not entitled
to a sign permit as the proposed billboard violated the plain language of
the ordinance.

ROA argues that the place of worship spacing restriction is ambiguous, that an
alternative construction applies, and that ROA is entitled to the sign permit as a matter of
law. We disagree.
“Interpretations of state statutes and existing local zoning ordinances are questions
of law that this court reviews de novo.” Clear Channel Outdoor Advert., Inc. v. City of St.
Paul, 675 N.W.2d 343, 346 (Minn. App. 2004) (quotation omitted). The rules governing
statutory interpretation apply to the interpretation of city ordinances. In re Haslund, 781
N.W.2d 349 , 354 (Minn. 2010) . When interpreting an ordinance, “a court must first
determine whether the [ordinance’s] language, on its face, is ambiguous.” Am. Tower, L.P.
v. City of Grant, 636 N.W.2d 309, 312 (Minn. 2001). Courts interpret an ordinance’s words
according to their plain and ordinary meaning using the rules of grammar. Frank’s Nursery
Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn. 1980); Minn. Stat. § 645.08(1)
(2024). An ordinance “ is only ambiguous when the language therein is subject to more
than one reasonable interpretation .” Motokazie! Inc. v. Rice Cnty. , 824 N.W.2d 341, 344
(Minn. App. 2012). “Where the legislature’s intent is clearly discernable from plain and
unambiguous language, statutory construction is neither necessary nor permitted and courts
apply the statute’s plain meaning.” Am. Tower, L.P., 636 N.W.2d at 312. “Although the
city’s action is not determinative, its interpretation is entitled to some weight.” Chanhassen
Ests. Residents Ass’n v. City of Chanhassen, 342 N.W.2d 335, 340 (Minn. 1984).
18
UDC § 60.400.ll0G.l.d provides the following language and figure:4
No billboard shall be located within 300 feet of a Place of
Worship, School, or Medical Facility. This distance shall be
measured from the nearest edge of the billboard to the Place of
Worship, School, or Medical Facility to the closest point on
any boundary line of the Place of Worship, School, or Medical
Facility property as shown in Figure 1d. This restriction only
applies to Place of Worship, School, or Medical Facility
properties that abut the same right-of-way where a billboard is
oriented, regardless of whether the billboard is located on the
same side or the opposite side of the right-of-way as the Place
of Worship, School, or Medical Facility.

ROA proposes the alternative construction that “the spacing restriction is not
implicated so long as the billboard is not oriented (viz., directed) to the right of way directly
abutting the place of worship.” ROA contends that as the “proposed billboard was not
directed toward [the church]” that it was not prohibited by the spacing restriction. To

4 This graphic is not to scale and is only meant to illustrate the ordinance’s provisions.

19
support this argument, ROA contends that the term “right -of-way” is ambiguous, that the
definition “refers to a strip of land set aside for a specific use, not to an entire street or
highway,” and that the term “oriented” should not be interpreted to be sy nonymous with
“abut.” Because the ordinance is unambiguous, ROA’s argument fails.
The UDC provides definitions for the terms “right -of-way” and “abut.” See UDC
§ 60.600.030. “Right -of-way” is defined as “[a] strip of land acquired by dedication,
reservation, prescription, or condemnation occupied or intended to be occupied by a road,
crosswalk, utility line, railroad, electric transmission line, streetscape improvements, street
furniture, or other similar use.” See id. “Abut” is defined as “[t]o share a common lot line
for a distance greater than a point.” See id.
The frontage road located adjacent to the properties is “a strip of land . . . occupied
by a road.” See id. As such, the frontage road clearly meets the definition of a right -of-
way. The fact that the definition uses the term “a strip of land” does not render the
definition ambiguous. Further, the record clearly reflects that the church abuts this frontage
road. Thus, ROA’s argument on this point is unpersuasive.
The term “oriented” is not defined by the UDC. See generally UDC § 60.600.030.
However, under the UDC’s rules of construction, “[a]ll words and terms used in this UDC
have their commonly accepted dictionary meaning unless they are specifically defined in
this UDC or the context in which they are used clearly indicates to the contrary. ” UDC
§ 60.600.010(B). The parties agree that “oriented” means “directed” at or “facing.”
Applying this definition, ROA’s proposed billboard would be “directed” at, or “ facing,”
the frontage road. As the church abuts the same right -of-way (the frontage road) the
20
proposed billboard would be oriented towards, and because the church is located within
300 feet of the proposed billboard, the proposed billboard would clearly violate the UDC.
In sum, based on the ordinance’s plain and ordinary language, the ordinance has
only one reasonable interpretation: A billboard cannot be located within 300 feet of a place
of worship, as properly measured, where the place of worship abuts a right-of-way, and the
billboard is oriented toward that same right-of-way. Here, ROA seeks to place a billboard
165 feet from a place of worship (the church), where the place of worship abuts a right-of-
way (the frontage road), and where the billboard will be oriented toward the right-of-way
(the frontage road). Nowhere in the UDC does it address how the billboard must be
oriented with respect to the place of worship. As such, ROA’s proposed alternative
construction improperly adds language to the unambiguous ordinance. See Rohmiller v.
Hart, 811 N.W.2d 585, 590 (Minn. 2012) (stating the court “cannot add words or meaning
to a statute that were intentionally or inadvertently omitted”). As the ordinance is
unambiguous, this court need not reach ROA’s policy argument. See Energy Pol ’y
Advocs., 980 N.W.2d at 16 2 (stating that the court does not consider policy when the
language of the statute is unambiguous).
Accordingly, the district court did not err in determining that ROA’s proposed
billboard violated the plain language of the ordinance. As such, the district court properly
determined that ROA was not entitled to a sign permit.
IV. The district court did not err in determining the record of decision
adequately supports the denial of the variance.

21
ROA argues that the denial of the variance was arbitrary, capricious, unsupported
by substantial evidence, and contrary to the law. The UDC provides that a variance shall
be approved if each of the listed criteria ( a through i) have been satisfied. See UDC
§ 60.500.070(C)(4). ROA challenges the city’s decisions for multiple criteria. Because
at least one of the city’s given reasons for the denial of the variance is adequately supported
by the record of decision, ROA’s argument fails.
Appellate courts review a local government ’s zoning decision “independent of the
findings and conclusions of the district court.” Nw. Coll. v. City of Arden Hills , 281
N.W.2d 865, 868 (Minn. 1979). “Municipalities have broad discretionary power in
considering whether to grant or deny a variance.” Krummenacher v. City of Minnetonka ,
783 N.W.2d 721 , 727 (Minn. 2010) (quotation omitted). An appellate court reviews a
municipal variance decision “to determine whether the municipality 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.” Id. (quoting In re Stadsvold, 754 N.W.2d 323 , 332
(Minn. 2008) (internal quotation omitted)).
“On appeal we affirm a municipality ’s decision so long as any one stated reason
shows its decision was not arbitrary or capricious.” Roselawn Cemetery v. City of
Roseville, 689 N.W.2d 254, 259 (Minn. App. 2004). If any one of the city’s stated reasons
is “legally sufficient” and has “a factual basis” in the record of decision, the denial of the
variance is not arbitrary, capricious, or unreasonable. VanLandschoot v. City of Mendota
Heights, 336 N.W.2d 503 , 508 (Minn. 1983). Appellate courts defer to a m unicipality’s
22
decision when the factual basis for the denial has even the “slightest validity.” Roselawn
Cemetery, 689 N.W.2d at 259 (quoting White Bear Docking & Storage, Inc., 324 N.W.2d
at 176).
A. At least one of the city’s stated reasons for the denial of the variance is
adequately supported by the record of decision.

1. Criterion c: Practical difficulties unique to the property
To satisfy criterion c, the applicant must prove that:
The practical difficulties are unique to the property, are not
solely economic considerations, and have not been created by
the landowner. Examples of practical difficulties that are
unique to the property include but are not limited to
irregularity, narrowness, or shallowness of the lot, exceptional
topographical or physical conditions, or inadequate access to
direct sunlight for solar energy systems, that are peculiar to the
property that do not apply to other lands within the
neighborhood or the same class of zoning district.

UDC § 60.500.070(C)(4)(c).
The board found that ROA failed to satisfy this criterion because ROA’s plight is
not unique to the property:
No practical difficulties exist on the site as it is currently being
used as a storage facility, in compliance with the zoning
ordinance. If practical difficulties do exist, the difficulties are
created by the landowner and are based solely on economic
considerations to increase revenue. There is nothing unique to
this site (narrowness, topography, etc.) that does not apply to
all other sites in an MX-G Zoning District.

This court has determined that unique circumstances are not created by hardship
imposed from the property owner’s decision -making. See Graham v. Itasca Cnty. Plan.
Comm’n, 601 N.W.2d 461 , 467 -468 (Minn. App. 1999) (stating that neither the
23
landowner’s mistaken knowledge of a zoning ordinance nor the decision to purchase
adjacent lots, which imposed the hardship, constituted unique circumstances ). Similarly,
here, while ROA may argue that the lot’s size makes it impossible to place a billboard
outside of the 300 -foot requirement, that does not constitute a unique circumstance. The
ordinance was in place, and the church was in its location, when ROA entered the lease.
The fact that ROA now claims that it cannot lease the property as it intended (to build and
maintain a billboard), when the ordinance was in effect at the time the lease was entered,
does not create unique circumstances justifying a variance. See id.
While ROA argues that a unique circumstance is created by the church not opposing
the variance, this argument is unpersuasive. A third-party’s approval of a variance is not a
practical difficulty unique to the property, nor is it a factor this court is required to consider.
See UDC § 60.500.070(C)(4)(c).
Accordingly, because unique circumstances are not created by hardship imposed
from the property owner’s decision -making, the city did not err in determining that ROA
had failed to demonstrate practical difficulties unique to the property.
2. Criterion e: Essential character
To satisfy criterion e, the applicant must prove that “[t]he [v]ariance will not alter
the essential character of the surrounding area.” UDC § 60.500.070(C)(4)(e).
The board found that ROA had failed to satisfy this criterion because:
The Variance will alter the essential character of the
surrounding area, as a Place of Worship is located within 300
feet of where the billboard is being proposed. The Land
Development Manual and the new Unified Development Code
specifically identify three uses (Places of Worship, Medical
24
Facilities, and Schools) that should not be located within 300
feet of any new billboard. The proposed billboard seeks to
reduce the distance between the billboard and Homestead
Church from 300 feet to approximately 165 feet —a 45%
reduction in the required distance between a billboard and a
Place of Worship.

ROA asserts that, because the church moved onto the neighboring property with an
existing billboard less than 300 -feet away, and because there was a second billboard that
stood for over 30 years and was located 75 feet from where ROA now seeks to place the
new billboard, that ROA’s proposed billboard would maintain rather than change the
essential character of the area. While this argument does have some merit, municipalities
still retain discretion in deciding whether to grant or deny a variance. See Krummenacher,
783 N.W.2d at 723. Here, both billboards that ROA references were in place at the time
the church moved into the neighboring property. The board’s findings clarify that the
ordinance is directed at new billboards, not existing ones. Because the second billboard
was removed in 2023, only one billboard remains. Therefore, it was not unreasonable for
the board to determine that ROA had failed to satisfy this criterion.
ROA additionally challenges the mayor’s veto as the mayor, in the written
explanation of her decision, stated that “[t]he variance could be detrimental to public health
and create a slippery slope for future billboard variances.” Even assuming ROA’s
argument is correct , the mayor provided at least one legally sufficient reason for her
decision when she agreed with the board that ROA had failed to meet criterion c, stating
“[t]here is no existing practical difficulty or unique feature of the site .” This reason alone
is sufficient to demonstrate that the mayor’s decision was not arbitrary or capricious. See
25
Roselawn Cemetery, 689 N.W.2d at 259 (stating “[o]n appeal we affirm a municipality ’s
decision so long as any one stated reason shows its decision was not arbitrary or
capricious”).
Accordingly, because ROA sought a substantial deviation from the setback
requirement and has failed to demonstrate that the variance would not alter the essential
character of the surrounding area, the record of decision adequately supports the city’s
denial of the variance.5
B. The proceedings were not fundamentally unfair.
ROA argues that the city’s proceeding was fundamentally unfair , rendering the
city’s denial of the variance arbitrary and capricious. ROA cites (1) the city attorney’s
email communications to the city council; (2) Councilmember Dennis’ change of vote; (3)
Councilmember Kirkpatrick’s abstention; and (4) the city council’s decision not to
postpone the vote on the mayor’s veto. Each of these arguments will be addressed in turn.
1. The city attorney’s email communications
ROA argues t hat t he city attorney’s July 28 email contained factual and legal
inaccuracies that shifted the votes of “multiple councilmembers,” and that this email
rendered the entire proceeding unfair. We disagree.

5 ROA additionally argues that the city applied the wrong legal standard for criterion b,
reasonable use. However, even assuming ROA’s requested variance is a reasonable use of
the property, because the record of decision supports the city’s determination as to criteria
c and e, this factor alone does not render the city’s decision arbitrary and capricious. See
Roselawn Cemetery, 689 N.W.2d at 259.
26
ROA characterizes the July 28 email by stating the city attorney urged the city
council to “defer to the [s]taff’s recommendations or face ‘greater legal risk.’” This
characterization is inaccurate. The city attorney made clear in the July 28 email that he
was not suggesting the council should always agree with staff, but rather that the council
should be “thoughtful” when doing so. The relevant portion of the email states:
From a legal perspective, the Council should be very careful
and deliberate when choosing to dismiss or ignore staff’s
proposed finding. Don’t misunderstand me, I am not
suggesting that Council should always agree with staff . But
particularly on quasi-judicial matters, the body should be very
thoughtful when deviating from staff’s recommendation. The
City assumes greater legal risk if a body ignores staff’s
recommendations and fails to offer well -reasoned and legally
valid alternative Findings.

(Emphasis added.)
ROA also takes issue with the city attorney’s advice that the council, as a quasi -
judicial decision-making body, should focus on the legal criteria in deciding the matter as
opposed to other factors. It is not inappropriate for an attorney to advise his client to focus
on the legal criteria when deciding on a variance, and ROA has not presented any evidence
that the city attorney instructed the council to disregard the legal criteria or otherwise act
unfairly.
Moreover, ROA’s contention that the city attorney’s emails shifted the votes of
“multiple councilmembers,” is incorrect. Of the five council members who voted to
reverse the board’s denial, only Councilmember Dennis voted against the motion to
override the veto. Councilmember Dennis provided multiple reasons on the record for her
change of vote.
27
As such, ROA’s contention that the city attorney’s July 28 email rendered the entire
proceeding unfair is unpersuasive. Because we reverse and remand for the district court to
apply the correct standard to determine whether the August 7 email is protected by the
attorney-client privilege, we need not analyze the fairness of that email on appeal at this
time.
2. Councilmember Dennis’s vote
ROA argues that Councilmember Dennis’s vote in favor of the veto was unfair
because Dennis had a phone call with a constituent that influenced her vote.
Councilmember Dennis’s interrogatory answers state that the constituent “brought up that
even if Councilmember Dennis trusted ROA to comply with the conditions for the
variance, the company could be sold in the future, and there was nothing to ensure that a
new company would comply. ” ROA also contends that, because the conditions on the
variance would remain in effect if the leased property was sold, or if ROA was sold, that
Councilmember Dennis based her decision on an incorrect theory of law. We disagree.
The supreme court has established that variance applicants bear a heavy burden to
demonstrate entitlement to a variance grant. See Luger v. City of Burnsville, 295 N.W.2d
609, 612 (Minn. 1980) (explaining that because “[a] variance allows property to be used in
a manner forbidden by the ordinance . . . a heavy burden is imposed on an applicant for a
variance to show that its grant is appropriate ”); see also Krummenacher , 783 N.W.2d at
727-28 (explaining that a variance applicant must meet all of the applic able statutory
requirements before being granted a variance). For the reasons discussed above, the record
of decision reflects that ROA failed to meet their burden. The transcript of the August 7
28
city council meeting reflects that Councilmember Dennis did not have any background in
zoning at the time of her vote to overturn the board’s denial of the variance. Dennis
explained that, at the time, she “was in very much support of [the] project becaus e it did
not impact the residents around the billboard.” Councilmember Dennis goes on to explain
that due to the “depletion of the information” she had during her first vote, she “wasn’t
able to articulate the reasons that need [ed] to be a foundation.” T he burden was on ROA
to provide Councilmember Dennis with the foundation needed to support the variance. See
id. The record of decision, and the transcript of the August 7 city council meeting, reflect
that ROA failed to meet this burden.
3. Councilmember Kirkpatrick’s abstention
ROA argues that Councilmember Kirkpatrick was biased and “could not act as an
objective and impartial decision-maker on ROA’s variance in light of this bias.” However,
the record does not support ROA’s contention. During the July 24 city council meeting,
Councilmember Kirkpatrick voted in favor of ROA when she voted to overturn the board’s
denial of the variance. Then, during the August 7 city council meeting, Councilmember
Kirkpatrick abstained from voting altogether. Kirkpatrick explained that she “continue[d]
to go back and forth on both sides,” and was “unable to make a just decision either way.”
It is appropriate for a councilmember to abstain when they cannot vote in a neutral manner.
See Cont’l Prop. Grp., Inc. v. City of Minneapolis, No. A10-1072, 2011 WL 1642510 , at
*6-7 (Minn. App. May 3, 2011) (explaining that a biased city council member should not
have participated in the city council decision and remanding to the city council for a new
hearing and decision without the biased councilmember). As such, ROA’s contention that
29
Councilmember Kirkpatrick’s abstention resulted in unfairness toward ROA is
unpersuasive.
4. The city council’s decision not to postpone the vote on the mayor’s veto
ROA argues that the city’s decision to conduct the vote on the mayor’s veto at the
regular council meeting immediately following the veto was unfair, and that the city should
have postponed the vote until Councilmember Bransford could be in attendance. 6 We
disagree.
Rochester City Ordinance § 6.03 provides:
If the mayor approves the same, the mayor shall sign it, adding
the date of approval thereto. The mayor shall then return it to
the city clerk within five days of receipt from the city clerk. If
the mayor declines to approve the same, the mayor shall,
within said five days, return it to the city clerk with a statement
of objections thereto, to be presented to the common council at
its next meeting thereafter.

(Emphasis added.)
Presenting the mayor’s veto to the city council at the meeting immediately following
the veto is expressly contemplated by the ordinance. In contrast, the ordinance does not
contemplate postponing the vote. Here, the mayor issued the veto on July 27. The vote on
whether to override the mayor’s veto was held at the next city council meeting, occurring
on August 7. The vote was conducted in accordance with the ordinance. As a result, it
was not unfair for the city to hold the vote on the mayor’s veto at the regular council

6 Councilmember Bransford voted in favor of ROA on July 24 and indicated via email that
he would be voting in favor of overturning the mayor’s veto, had he been present for the
vote.
30
meeting immediately following the veto, even if it meant Councilmember Bransford could
not be in attendance.
Accordingly, the district court did not err in determining the city’s proceedings were
not fundamentally unfair.
V. The district court did not err in determining that the city did not violate
the Minnesota Open Meeting Law.

ROA argues that it is entitled to summary judgment on its OML claim because the
district court erred in concluding the city attorney’s July 28 and August 7 emails did not
violate the OML. We disagree.
“On appeal from summary judgment, we review whether there are any genuine
issues of material fact and whether the district court erred in its application of the law. We
view the evidence in the light most favorable to the party against whom summary judgment
was granted.” STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76-77 (Minn.
2002) (citations omitted). “We review de novo whether a genuine issue of material fact
exists. We also review de novo whether the district court erred in its appli cation of the
law.” Id. at 77 (citations omitted). The interpretation of a statute is a question of law that
is reviewed de novo. Funk v. O’Connor, 916 N.W.2d 319, 321 (Minn. 2018).
“All meetings . . . of the governing body of a . . . statutory or home rule charter city”
must be open to the public. Minn. Stat. § 13D.01, subd. 1(b)(4). What constitutes a
“meeting” is undefined by statute, but caselaw has provided that the OML applies to “those
gatherings of a quorum or more members of the governing body, or a quorum of a
committee, subcommittee, board, department, or commission thereof, at which members
31
discuss, decide, or receive information as a group on issues relating to the official business
of that governing body.” Moberg v. Indep. Sch. Dist. No. 281, 336 N.W.2d 510, 518 (Minn.
1983). This court has recognized that the quorum requirement in Moberg “reflects the
supreme court’s unwillingness to subject gatherings of public officials to the open meeting
law where the group lacks power to actually transact business.” Sovereign v. Dunn , 498
N.W.2d 62, 66 (Minn. App. 1993) (quotation omitted), rev. denied (Minn. May 28, 1993).
In Moberg, the supreme court clarified that “[t] he [OML] statute does not apply to
letters, or to telephone conversations between fewer than a quorum” of members. Moberg,
336 N.W.2d at 518. In that case, the court held that there was no OML violation when, at
a gathering attended by all board members, “ the superintendent distributed, but did not
discuss, written copies of the questions and answers and invited Board members to give
him their reactions individually after they had had an opportunity to read the material.” Id.
The court explained that the “ distribution of wri tten questions and answers was
functionally equivalent to receiving the information through the mail ” and that there was
“no danger of forming a group consensus because no information was actually received
until the material was read, and no discussion occurred.” Id. at 518-19.
Here, a quorum of the city council requires four members. In the July 28 email, the
city attorney emailed the city council president, the mayor, cc’d city staff, and bcc’d the
remaining members of the city council “to avoid an unintended open meeting law
violation.” Following receipt of the July 28 email, it is true that some city council members
replied to the city attorney, or exchanged emails with other members ; however, no emails
32
were exchanged between a quorum of the city council.7 In the August 7 email, the city
attorney emailed the city council president, the mayor, cc’d city staff, and bcc’d the
remaining members of the city council to “avoid OML violations.” Again, there is nothing
in the record of decision to indicate that subsequent email discussion took place among a
quorum of the council.
In sum, the July 28 and August 7 emails from the city attorney (a non -decision-
maker) to all council members are not “meetings” under the OML because there is no
evidence that a quorum of the council (in this case, at least four members) discussed the
contents of the email messages in a non-public setting. Because the emails were not open
meetings within the scope of the OML, ROA was not entitled to copies of the emails prior
to any city proceeding.
Accordingly, the district court did not err in determining that the city did not violate
the OML.
Affirmed in part, reversed in part, and remanded.

7 Councilmember Mark Bransford replied to the city attorney’s email and included
Councilmember Shaun Palmer; Councilmember Bransford emailed the city attorney and
included Council President Brooke Carlson and Councilmember Patrick Keane; emails
were exchanged between Councilmember Keane, Mayor Norton, the city attorney, and
Council President Carlson; emails were exchanged between Councilmember Keane and
Councilmember Bransford with the city attorney and Council President Carlson included;
Councilmember Dennis emailed the city attorney with Councilmember Kirkpatrick and
Council President Carlson included.