Thomas Coleman v. City of Stillwater, RMR of Stillwater, LLC

This opinion is nonprecedential except as provided by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
A23-0393

Thomas Coleman,
Appellant,

vs.

City of Stillwater,
Respondent,

RMR of Stillwater, LLC, et al.,
Respondents.

Filed November 20, 2023
Affirmed
Halbrooks, Judge *

Washington County District Court
File No. 82-CV-22-1178

Thomas E. Coleman, Stillwater, Minnesota (pro se appellant)

Paul A. Merwin, League of Minnesota Cities, St. Paul, Minnesota (for respondent City of
Stillwater)

Kay Nord Hunt, Michelle K. Kuhl, Lommen Abdo, P.A., Minneapolis, Minnesota (for
respondents RMR of Stillwater, LLC, et al.)

Considered and decided by Worke, Presiding Judge; Ross, Judge; and Halbrooks,

Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to

Minn. Const. art. VI, § 10.
 NONPRECEDENTIAL OPINION

HALBROOKS, Judge

Appellant challenges the district court’s grant of summary judgment to respondents.

Because we conclude that there are no issues of material fact and that the district court did

not err in its application of the law, we affirm.

FACTS

Respondent RMR of Stillwater LLC, owns respondent Stillwater Towing, Inc.

(collectively Stillwater Towing), which has operated an automobile impound lot in the city

of Stillwater for 40 years. In January 2020, Stillwater Towing bought a 5.3-acre parcel

approximately one-tenth of a mile down the street from its primary location with the intent

of using the new lot to store automobiles outside. The area is zoned BP-I—business park

industrial. BP-I zoning allows for “light industrial and office uses,” Stillwater, Minn.,

Code of Ordinances (SCO) § 31-321(a) (2023), as well as “auto repair and related

services.” SCO § 31-325 (2023). Outdoor storage is permitted with a conditional use

permit (CUP). Id.

Stillwater Towing applied for a CUP in order to conduct its towing and impound

business on the property. It also applied for a variance to the city’s tree and forest

protection ordinance, SCO § 31-522 (2023), anticipating the need to remove trees from the

site. The Stillwater Planning Commission accepted written comments, held a public

hearing, and reviewed a report prepared by the city staff. The commission voted to approve

the CUP with multiple conditions and denied the tree-variance request.

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 Appellant, Thomas Coleman, and others appealed the decision to the Stillwater City

Council. 1 Stillwater Towing first appealed the variance denial but subsequently withdrew

its variance application. The city council accepted written comments, held a public

hearing, and reviewed an updated staff report. The council decided to table the matter for

a few weeks in order to more closely examine the city code and to develop appropriate

conditions if the conditional use was approved. The council ultimately adopted a resolution

approving the CUP with 21 conditions attached.

Coleman petitioned the district court for mandamus, asking the district court to

compel the City of Stillwater to “enforce the zoning codes and ordinances” by rescinding

the CUP and enforcing the tree ordinance. Stillwater Towing moved to intervene pursuant

to Minn. R. Civ. P. 24.01, and the district court granted the motion. The city and Stillwater

Towing submitted separate motions for summary judgment.

The district court determined that Coleman had failed “to make even a minimal

showing that mandamus is appropriate.” With respect to respondents’ motions, the district

court concluded that there were no issues of material fact and that the city’s decision was

supported by the record and was not arbitrary or capricious. The district court granted

summary judgment in favor of the city and Stillwater Towing and dismissed Coleman’s

claims.

This appeal follows.

1 The decision of whether to grant a CUP in Stillwater is made by the planning commission

with the right to appeal the commission’s decision to the city council. SCO § 31-204,
subd. 5 (2023).

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 DECISION

Coleman challenges the district court’s summary-judgment dismissal of his claims

arguing that the district court erred in (1) determining that the city’s CUP decision was

supported by a rational basis and that the CUP’s conditions were sufficient; (3) determining

that respondent Stillwater Towing did not violate the city’s tree and forest protection

ordinance; and (4) failing to rule on appellant’s “motion for a revote.”

On appeal from summary judgment, this court reviews “the grant of summary

judgment de novo to determine whether there are genuine issues of material fact and

whether the district court erred in its application of the law.” Montemayor v. Sebright

Prod., Inc., 898 N.W.2d 623, 628 (Minn. 2017) (quotation omitted). “In order to

successfully oppose summary judgment, appellant must extract specific, admissible facts

from the voluminous record and particularize them for the [court].” Kletschka v. Abbott-

Nw. Hosp., Inc., 417 N.W.2d 752, 754 (Minn. App. 1988), rev. denied (Minn. Mar. 30,

1988). If reasonable persons might draw different conclusions from the evidence

presented, summary judgment should be denied. Ill. Farmers Ins. Co. v. Tapemark Co.,

273 N.W.2d 630, 633 (Minn. 1978).

I. Conditional-Use Permit

Coleman argues that the district court erred in determining that the city council’s

decision to issue the CUP was not unreasonable, arbitrary, or capricious. On appeal from

a district court’s review of a city’s zoning decision, this court reviews a city’s approval of

a CUP to determine whether the decision was unreasonable, arbitrary, or capricious

independent of the district court’s findings and conclusions. Roselawn Cemetery v. City of

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Roseville, 689 N.W.2d 254, 258 (Minn. App. 2004); see also Schwardt v. County of

Watonwan, 656 N.W.2d 383, 386 (Minn. 2003). A city has broad discretion to approve or

deny a CUP. BECA of Alexandria, L.L.P. v. County of Douglas ex rel. Bd. of Comm’rs,

607 N.W.2d 459, 463 (Minn. App. 2000). Accordingly, this court exercises deference in

reviewing the city’s CUP decision, particularly when it is an approval. Big Lake Ass’n v.

St. Louis Cnty. Plan. Comm’n, 761 N.W.2d 487, 491 (Minn. 2009).

In determining whether the city acted unreasonably, arbitrarily, or capriciously, this

court follows a two-step process. RDNT, LLC v. City of Bloomington, 861 N.W.2d 71, 75

(Minn. 2015). “First, we must determine if the reasons given by the city were legally

sufficient.” Id. at 75-76. If they are legally sufficient, we must determine whether “the

reasons had a factual basis in the record.” Id. at 76. The city council need not make explicit

findings supporting its decision so long as a reviewing court can determine that the “order

granting a CUP . . . demonstrate[s] the board’s conclusion that the proposal has satisfied

each of the zoning ordinances conditions for approval.” Schwardt, 656 N.W.2d at 389.

Coleman does not argue that the city’s reasons for granting the CUP were legally

insufficient. Rather, Coleman contends that the reasons given by the city council in support

of upholding the CUP lack a factual basis in the record. Coleman argues the findings made

in support of granting the CUP were “decisively vacated” by city staff’s findings prepared

for the city council. Coleman cites no authority, and we are aware of none, to support his

argument that the city council was bound by the city staff’s report. Rather, local decision-

makers have discretion in how they weigh conflicting evidence. Billy Graham Evangelistic

Ass’n v. City of Minneapolis, 667 N.W.2d 117, 124 (Minn. 2003). Upon review, this court

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does not assume the role of the city council and reweigh the conflicting evidence, but

instead “review[s] the record to determine whether there was . . . evidence to support the

zoning authority’s decision.” Id. (quotation omitted).

In this case, the city council received public comments, held multiple hearings, and

had multiple staff reports prepared as part of its decision-making process. The city council

debated in public session, discussed the rationale for its decision, and adopted written

findings in its approval resolution. During the hearings, the mayor responded to the

concerns raised by Coleman and observed that Stillwater Towing’s business has been

operating across the street from the property for 40 years with no nuisance problems. The

mayor explained that the proposal would move Stillwater Towing to a location 450 feet

from residences, whereas its previous location was only 10 feet from residences. The

mayor elaborated that the property is “certainly safer from a public safety standpoint, in

terms of its entrance and exits. It moves [Stillwater Towing] further away from residential,

from homes, than its current location.”

The mayor stated that through “landscaping plans, and fencing and screening and

tree growth, and all of the environmental conditions that have already been outlined [in the

planning commission’s findings],” the CUP could be granted “in a way that doesn’t have

an impact on the neighborhood and is ultimately better for the environment and public

safety.” The city council members noted that they would “do everything in [their] power

to [impose conditions that] minimize the impact to the neighborhood in a way that’s going

to help our environment” and that the location would be “better for the environment than

its current location, and that’s been a focus of [the] council and [the] city for a long time.”

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The city council also discussed how the CUP provided an opportunity to create conditions,

such as water-runoff controls, that would apply to the new site for Stillwater Towing and

create more protection for the neighborhood than the old site, which had no conditions.

The city council ultimately adopted a resolution approving the CUP, upholding the

planning commission’s decision and supplementing the conditions placed upon the permit.

The city council found that

the proposed structure or use conforms to the requirements and
the intent of the zoning code, the comprehensive plan, relevant
area plans and other lawful regulations and that, with certain
condition, the use or structure will not constitute a nuisance or
be detrimental to the public welfare of the community.

The city council imposed 21 conditions on the CUP, including limits on the way

automobiles were stored, prohibitions on other uses, installation of fences, requirements

for landscaping and vegetation, tree replacement, lighting specifications, stormwater

controls, environmental testing of water runoff, and that the CUP is subject to review if

there are neighborhood complaints.

The record demonstrates that the city council considered each finding required by

SCO § 31-207(d) (2023) before voting to uphold the planning commission’s decision and

denying the appeal. 2 The reasons given by the city council have a factual basis in the record

and show that the council considered the conflicting city staff reports and ultimately

2 SCO § 31-207(d) states that before approving a conditional use permit, the governing

body must determine that: “(1) The proposed structure or use conforms to the requirements
and intent of this chapter, and of the comprehensive plan, relevant area plans and other
lawful regulations; (2) Any additional conditions necessary for the public interest have
been imposed; and (3) The use or structure will not constitute a nuisance or be detrimental
to the public welfare of the community.”

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exercised their discretion in weighing the evidence. We therefore conclude that the city

council’s determination to grant the CUP is not in error. This court will not substitute its

judgment for that of the city council’s when its decision was not unreasonable, arbitrary,

or capricious.

II. Writ of Mandamus

Coleman also argues the district court erred in declining to issue a writ of mandamus

ordering that the city enforces its tree and forest protection ordinance, SCO § 31-522, on

Stillwater Towing’s “deforestation” of its property. We are not persuaded.

“To be entitled to mandamus relief, [a party] must show that: 1) the city failed to

perform an official duty clearly imposed by law; 2) he suffered a public wrong and was

specifically injured by the city’s failure; and 3) he has no other adequate legal remedy.”

Breza v. City of Minnetrista, 725 N.W.2d 106, 109-10 (Minn. 2006) (quotation omitted).

On appeal from a district court’s order denying a petition for mandamus relief, we will

reverse the district court’s decision only when “there is no evidence reasonably tending to

sustain the [district] court’s findings.” Popp v. County of Winona, 430 N.W.2d 19, 22

(Minn. App. 1988) (citing State ex rel. Banner Grain Co. v. Houghton, 170 N.W. 853, 853

(Minn. 1919)), rev. denied (Minn. Nov. 23, 1988).

Coleman presented no specific, affirmative evidence showing that the city failed to

enforce the ordinance or that Stillwater Towing violated the ordinance. The tree and forest

protection ordinance states that a development may not reduce the number of trees on a site

by more than 35% and, if more than 35% are removed, trees can be replaced at a 1:1 ratio.

SCO § 31-522 subds. 3(d), 5(c). Stillwater Towing submitted as evidence, in support of

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its motion for summary judgment, a tree inventory prepared for the property by a forestry

consulting company. The inventory showed that there were 267 trees on the property and

less than 80 had been removed—which did not violate SCO § 31-522. The evidence

Coleman submitted in support of his petition included various photographs. The

photographs do not show any signs or indicia of tree removal, nor do they identify the

locations where the photographs were taken. Upon review of the record, there is no

genuine issue of material fact as to whether Coleman is entitled to a writ of mandamus.

III. Issues Not Properly Before This Court

Coleman also alleges the district court erred by failing to consider his “Motion for

the City Council to revote” and “exclusion of biased City Council members” from

participation in the revote. “Appellate courts cannot assume a district court erred by failing

to address a motion, and silence on a motion is therefore treated as an implicit denial of the

motion.” Palladium Holdings, LLC v. Zuni Mortg. Loan Tr. 2006-OA1, 775 N.W.2d 168,

177-78 (Minn. App. 2009), rev. denied (Minn. Jan. 27, 2010). To the extent that Coleman’s

argument can be construed as an allegation that the CUP decision was arbitrary and

capricious because of the bias of the city council members, we are not persuaded.

Coleman does not identify any specific, affirmative evidence showing actual bias.

To the contrary, the record shows that the city council recognized the concerns Coleman

raised about the potential impacts to the environment and the surrounding neighborhood

and emphasized that their decision was based, not on their personal desires, but on whether,

when applying the applicable zoning code, the CUP should be granted. The record shows

that the city council engaged in a robust discussion and received and considered competing

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views on the CUP and its decision was based on the evidence before it. For these reasons,

when viewing the evidence in the light most favorable to Coleman, we conclude that

Coleman has failed to present evidence that would establish a genuine issue of material

fact as to whether the CUP decision was arbitrary and capricious because of the city

council’s alleged bias.

Coleman also challenges the city’s amendment of its ordinance governing

nonconforming uses, SCO § 31-216 (2023), arguing that the amendment “greatly increases

the harm to . . . property owners,” and asks this court to reverse the city’s CUP decision.

Coleman cites no authority which would allow this court to reverse a city’s CUP decision

on this basis. An assignment of error in a brief based on “mere assertion” and not supported

by argument or authority is forfeited unless prejudicial error is obvious on mere inspection.

Schoepke v. Alexander Smith & Sons Carpet Co., 187 N.W.2d 133, 135 (Minn. 1971).

Further, because Coleman did not present this argument to the district court, we decline to

consider it for the first time on appeal. Rose Cliff Landscape Nursery, Inc. v. City of

Rosemount, 467 N.W.2d 641, 644 (Minn. App. 1991) (stating a challenge to a zoning

ordinance, not presented to the district court, “will not be considered for the first time on

appeal”); see also Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (an appellate court

will not consider matters not argued to and considered by the district court).

Affirmed.

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