June 15, 2022

STATE OF MINNESOTA DISTRICT COURT

COUNTY OF OLMSTED THIRD JUDICIAL DISTRICT

Court File No. 55-CV-21-4667

Susan Wescott, Diane Lund, Rick Ties

John Cassady, Kai Miller, and
Mary Richter,
Plaintiffs,

V. ORDER

City of Rochester, Minnesota,

Defendant.

This matter came before the Honorable Troy G. Timmerman on April 12, 2022, cross

motions for summary judgment. The hearing was held via Zoom pursuant to the Court’s COVID-

19 pandemic guidelines. Attorney Katherine Swenson appeared on behalf of the City of Rochester.

Attorney Christopher Coons appeared on behalf of the Plaintiffs. The matter is before the Court

on cross-motions for summary judgment addressing the validity of Rochester Ordinance No. 4432.

The Court, having considered all of the files, records, and proceedings herein, makes the

following:

FINDINGS OF FACT
1. On February 3, 2021, Legacy Investments 02 LLC (herein “Legacy Investments”) entered

into a purchase agreement to purchase the property located at 521 14th Avenue SW in

Rochester, Minnesota (hereinafter “the Property”).

2. Ben Kall (hereinafter “Kall”) served as dual agent for the buyer and seller when the

purchased agreement was entered. Kall is also the manager and registered agent of Legacy

Investments and signed the purchase agreement on behalf of Legacy Investments.

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3. The purchase agreement includes the following partial legal description: “Sect-03 TWP-

106 Range-014 Flat Flathers Add Lot-005 544 ½ ft Lot 5 and all Lot 6 Blk 2 & TH PT Vac

alley lying adj to SD parcel.”

4. At the time of purchase the Property was zoned R-1 or as Low Density Residential.

5. On March 25, 2021, Kall participated in a Development Information Meeting which is a

prerequisite to applying for a zoning map amendment.

6. On April 1, 2021, the Rochester Community Development Department received a request

to rezone the Property from R-1 to R-2X. R-2X is low to medium density residential zone

that allows for a mixture of residential types.

7. The application materials listed Kall as the owner of the property and contained an incorrect

legal description for the property.

8. On April 28, 2021, the Planning and Zoning Commission (herein “the Commission”) held

a public hearing to address Kall’s application to rezone the site. Planning and Zoning staff

submitted a report and recommended that the Commission support the zoning change. The

Commission heard from concerned citizens and debated amongst themselves. At the

conclusion of the meeting, the Commission voted 4-2 against the application, reasoning

that the zoning map amendment was inappropriate for the property at that time.

9. On May 17, 2021, the matter came before the Rochester City Council (hereinafter “the

Council”). The Council received the minutes of the Commission meeting which indicated

their recommendation against the zoning change and the planning and zoning staff report

in support of the zoning change.

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10. At the public hearing the Council heard from members of the public and neighbors to the

Property at issue and debated and deliberated amongst themselves. At the conclusion of

the meeting the Council voted to approve the rezone request by a 4-3 margin.

11. The Council did not make formal findings in support of its vote at the May 17, 2021,

hearing. The formal Findings of Fact, Conclusions of Law and Order were prepared by

the City Attorney at a later time.

12. The initial public reading of the ordinance changing the zone took place at the June 19,

2021, Council meeting.

13. The second public reading of the ordinance changing the zone took place at the July 9,

2021, Council meeting.

14. On August 2, 2021, the Council was presented with and adopted the Findings of Fact,

Conclusions of Law and Order supporting the May 17, 2021, approval of the zone change

(hereinafter “the Findings”).

15. Also, at the August meeting the Council first consolidated the two tax parcels of the

Property into a single real estate tax unit.

CONCLUSIONS OF LAW

1. Minnesota Rule of Civil Procedure 56.01 provides that “[t]he court shall grant 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.” The Minnesota Supreme Court

has defined a material fact as “one of such a nature as will affect the result or outcome of

the case depending on its resolution.” Zappa v. Fahey, 245 N.W.2d 258, 259-60 (Minn.

1976). A genuine issue of material fact exists if a rational trier of fact, considering the

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 record as a whole, could find for the party against whom summary judgment was granted.

See Frieler v. Carlson Mktg. Grp., Inc., 751 N.W.2d 558, 564 (Minn. 2008).

2. Where summary judgment is sought, the moving party has the burden of showing that

there is no genuine issue of material fact and that it is entitled to judgment as a matter of

law. See Sauter v. Sauter, 70 N.W.2d 351, 353 (Minn. 1955). In order to raise a genuine

issue of material fact, the nonmoving party must present more than evidence “which

merely creates a metaphysical doubt as to a factual issue and which is not sufficiently

probative with respect to an essential element of the nonmoving party's case to permit

reasonable persons to draw different conclusions.” DLH, Inc. v. Russ, 566 N.W.2d 60, 71

(Minn. 1997). The Court must view the evidence in the light most favorable to the

nonmoving party, with all doubt and factual inferences resolved against the moving party.

Nord v. Herreid, 305 N.W.2d 337, 339 (Minn. 1981). Here both parties are the moving

parties and there are no genuine issues of material fact.

3. This matter comes before the Court in the form of a declaratory judgment action

concerning a zoning decision. The procedure for addressing this sort of action was

initially established by Hoon v. City of Coon Rapids, 313 N.W.2d 409 (Minn. 1981).

That decision was subsequently modified by Swanson v. City of Bloomington, 421

N.W.2d 307 (Minn. 1988).

[A] district court should establish the scope and conduct of its review of a
municipality's zoning decision by considering the nature, fairness *313
and adequacy of the proceeding at the local level and the adequacy of the
factual and decisional record of the local proceeding. Where the municipal
proceeding was fair and the record clear and complete, review should be
on the record. Where the municipal body has proposed formal findings
contemporaneously with its decision and there is an accurate verbatim
transcript of the proceedings, the record is likely to be clear and complete.

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 When the review is conducted on the record, the district court should
receive additional evidence only on substantive issues raised and
considered by the municipal body and then only on determining that the
additional evidence is material and that there were good reasons for failure
to present it at the municipal proceedings. The standard of review is
whether the municipal body's decision was unreasonable, arbitrary, or
capricious, with review focused on the legal sufficiency of and factual
basis for the reasons given. Swanson v. City of Bloomington, 421 N.W.2d
307, 312–13 (Minn. 1988)

The parties agreed that the Court’s review would be based on the record and that there

was no need to receive additional evidence. In applying the standard of review described

above, the Court will address the issues identified in Plaintiff’s memorandum in support

of its motion.

The City’s Failure to Make Contemporaneous Findings.

4. Plaintiffs argue that the City Council’s failure to make contemporaneous findings with its

decision to grant the zoning change is arbitrary and capricious. The Court of Appeals has

stated, “While we agree the total lack of contemporaneous findings is prima facie

arbitrary or capricious, the presumption can be overcome by evidence adduced at trial

displaying a rational basis for appellant’s decision.” Kehr v. City of Roseville,426

N.W.2d 233 (Minn. Ct. App. 1988). The minutes of the City Council meeting do not

reflect any findings made by the council at the May 17, 2021, meeting. The minutes

simply reflect who spoke and that the public hearing was then closed. There is no

indication of what discussion, if any, was held on the motion to adopt a Land Use Plan

Amendment for the parcel or the motion to approve the Zoning change. 1 The City relies

on the non-precedential opinion in Lovrien v. City of Shorewood, No. C6-88-2448 (

1 See Exhibits labeled as RX61-007 and 61-008.

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 Minn. Ct. App. 1989) which states, “A standard requiring the providing of findings at the

same time as the making of decision, as appellants advocate, does not even apply to trial

judges. Trial court decisions are commonly rendered from the bench with findings of

fact and a written order issued subsequently.” Id at 1. The Lovrien decision’notes there

was support for the council’s decision in the meeting minutes and in the subsequently

adopted resolution. Thus, both Kehr and Lovrien first look to the City Council’s minutes

for support for its decision. Here the minutes are deficient. Accordingly, a prima facie

case that the City acted in arbitrary or capricious manner exists.

5. Both cases also permit the rebuttal of the prima facie case through some sort of

subsequent action. That action may be through presenting evidence at trial or through

subsequent adoption of sufficient findings. Here the City Attorney subsequently

provided the Council with proposed Findings of Fact, Conclusions of Law, and Order

which operate to approve the Zone Change. 2 The Findings and Conclusions are

supported by the transcript of the proceeding before the Council. 3 Thus, in accordance

with both Kehr and Lovrien the prima facie case that the City acted in an arbitrary or

capricious manner by not making contemporaneous findings is rebutted by this

subsequent action.

Use of the City Attorney to Prepare the Findings and Order.

6. Plaintiffs argue that the City Attorney’s preparation of the Findings and Order violates

the City’s own ordinances rendering the document “without legal authority, ultra vires

and void”. This argument is based in part on R.C.O § 60.337 which states, “Ordinance

Adoption: where the Council wishes to proceed with an amendment it shall instruct the

2 See Exhibit RX-82

3 See Exhibit RX 63 generally

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 City Attorney to prepare an ordinance for subsequent adoption.” This argument suggests

that City Attorney could prepare an ordinance accomplishing the rezoning but not the

Findings supporting the ordinance The Ordinance was in fact prepared 4 by the City

Attorney and subsequently adopted.

7. However, the Court is asked to address whether having the City Attorney prepare

findings instead of the having the City Clerk’s minutes reflect the findings is such a fatal

defect as to render the City’s rezoning decision unreasonable, arbitrary, or capricious.

The Kehr decision is again instructive. The Kehr Court did not condone the City of

Roseville’s failure to provide contemporaneous findings but ultimately found a rational

basis for the City’s decision in the record. Kehr, at 237. If the absence of findings, and in

Kehr no findings were made, does not render a decision arbitrary or capricious then

having the findings prepared by the City Attorney instead of the City Clerk cannot be

fatal provided the Findings have support in the record. Here the Findings do have

support in the record.

8. Additionally, Plaintiff’s argument that the City Attorney exceeded “its statutory

mandate” is without merit. R.C.O. §60.337 does require that the Council direct the City

Attorney to prepare an ordinance for adoption, however the language of the Ordinance

does not limit the City Attorney to solely preparing an Ordinance. The apparent intent of

R.C.O. §60.337 is to create a mechanism for a legally sufficient Ordinance be prepared

and presented to the Council. That intent was effectuated. The purpose of the Ordinance

is not to serve as a limitation on the duties of the City Attorney. Such an Ordinance

would be in conflict with the City’s Home Rule Charter §8.00 which directs, “The city

4 See Exhibit RX65-003 and RX 65-004.

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 attorney shall draw all ordinances and legal instruments for the city and shall perform

such other professional services as properly appertain to the office.” 5 As the City’s

Home Charter directs the City attorney to draft all legal instruments and perform such

other professionals services as properly appertain to the office, the Findings drafted by

the City Attorney are not without legal authority or void.

The Sufficiency of the Findings Drafted by the City Attorney.

9. Plaintiffs argue that even if the Findings drafted by the City Attorney are valid, the

findings are otherwise deficient. When addressing a Zoning District change R.C.O.

§60.338 subd. 2C requires the Council make an additional finding:

[W]hile both the present and proposed zoning districts are consistent with
the Plan, the proposed district better furthers the policies and goals of the
Comprehensive Plan as found in Chapters 2 and 3 of the Rochester Urban
Service Area Land Use Plan, Chapter 3 of the Housing Plan, and Chapter
10 of the ROCOG Long Range Transportation Plan.

Plaintiffs argue this section of the City Ordinance requires a finding that the policies and

goals of each of the three listed sections are advanced by the rezoning decision. Conversely

the City argues that a rezoning decision must further the policies and goal of the

Comprehensive Plan and that the list of the three “plans” serves to identify three locations

where the Comprehensive Plan’s policies and goals can be found.

10. The Court of Appeals in In re Khan, 804 N.W.2d 132 (Minn. Ct. App. 2011) summarized

the law on interpreting city ordinances as follows:

The rules governing statutory interpretation are applicable to the

interpretation of city ordinances. Yeh v. Cnty. of Cass, 696 N.W.2d 115, 128
(Minn.App.2005), review denied (Minn. Aug. 16, 2005). The object of
statutory interpretation “is to ascertain and effectuate the intention of the
legislature.” Minn. Stat. § 645.16 (2010). When interpreting a law, we “first

5 Found at Frisell Declaration Ex. 19.

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 assess[ ] whether the [ordinance's] language, on its face, is clear or
ambiguous.” Laase v. 2007 Chevrolet Tahoe, 776 N.W.2d 431, 434
(Minn.2009) (quotation omitted). We “construe words and phrases
according to their plain and ordinary meaning.” Am. Family Ins. Grp. v.
Schroedl, 616 N.W.2d 273, 277 (Minn.2000). A law is read as a whole, and
each section is interpreted “in light of the surrounding sections to avoid
conflicting interpretations.” Id. Whenever possible, “[e]very law shall be
construed ... to give effect to all its provisions.” Minn. Stat. § 645.16.
Khan, at 142.

11. When giving effect to all of an ordinance’s provisions the Court must follow the additional

guidance of In re Kleven, 736 N.W.2d 707, 709 (Minn. Ct. App. 2007) which directs the

court to interpret a statute (or in this instance an ordinance) “whenever possible, to give

effect to all of its provisions; ‘no word, phrase or sentence should be deemed superfluous,

void or insignificant.” Kleven, at, 709.

12. With this guidance, the key to interpreting R.C.O. begins with the phrase “as found in”. If

this language is to be given effect and not deemed superfluous it must serve some purpose.

The purpose appears to be to identify three locations where the goals of the Comprehensive

Plan may be found. This means the City must determine that rezoning a district satisfies

the goals of the Comprehensive Plan. Those goals can be found in three different locations.

However, on its face the ordinance does not require findings that the goals of the separate

three sub-plans are met. Plaintiff’s proposed construction of the ordinance renders “of the

Comprehensive Plan as found in” surplusage. Plaintiffs read the disputed section of the

Ordinance as:

[W]hile both the present and proposed zoning districts are consistent with
the Plan, the proposed district better furthers the policies and goals of
Chapters 2 and 3 of the Rochester Urban Service Area Land Use Plan,
Chapter 3 of the Housing Plan, and Chapter 10 of the ROCOG Long Range
Transportation Plan.

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 However, that is not how the Ordinance is written. When read as written, the ordinance

does not appear ambiguous. The Ordinance only requires a single finding that the goals of

the Comprehensive Plan are met. That finding has been made.

Whether Ordinance No. 4432 Fails to Comply with R.C.O. §60.338 subd.4.

13. Plaintiffs argue that the City’s Ordinance 4432 should be null and void as the City failed

to make the findings required by R.C.O. §60.338 subd. 4. The ordinance provides in part,

“The criteria of this subdivision apply to an amendment to the text of the Zoning

Ordinance.” The City’s response is that Ordinance 4432 does not amend the text of the

City’s Zoning Ordinance but rather amends the Zoning Map. R.C.O. S338 subd. 2 and 3

set forth the requirements amendments to the to the Zoning Map must meet. The City is

correct those two subdivisions apply to amendments to the Zoning Map and the City made

the findings required by each section.

Whether Ordinance No. 4432 is Void Due to City’s Consideration of the Request for

a Zoning Change in the Absence of a Planning and Zoning Commission Report.

14. R.C.O. § 60.532(4) describe part of the process a zoning amendment must go through.

Following the public hearing, the Commission shall file a report

summarizing the findings of the public hearing and recommending either
approval, approval with conditions, or denial of the application with the City
Council within ten (10) days. The zoning administrator shall also transmit
a copy of his report along with the hearing report to the Council.

Plaintiffs argue that the Council did not have a report from the Planning and Zoning

Commission but rather only had the minutes from the Commission meeting. Plaintiffs

argue this is particularly troubling when the Council did have the professionally prepared

report of Rochester Community Development in support of zoning change but lacked the

report recommending against the rezoning. The City’s response is that this and some of

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 the subsequent issues raised by Plaintiffs are “technical defects” which do not merit

reversal of the Council’s decision as the Council acted in substantial compliance with the

City Code.

15. Plaintiffs did not include, but it is significant, that the next step in the process is contained

at R.C.O. § 60.532 (5) which provides:

The Council, within 20 days after receiving the reports from the
Commission and the zoning administrator, shall conduct a public hearing
pursuant to the requirements of 60.600. The Council shall make a decision
on the application by either approving, approving with conditions or
denying the application.

16. Both sections of the code use “shall” 6 which indicates that the action is mandatory not

discretionary. Thus, the ordinances mandate that the Commission file a report and that the

Council conduct its public hearing after receiving that report. It is clear that the City did

not have the Commission’s report and did not wait until after receiving the report to

conduct the public hearing. In lieu of a report the City had only minutes of the Commission

meeting. The minutes were not yet approved by the Commission, so the minutes lack the

official indication of accuracy that subsequent approval provides. Additionally, the Court

of Appeals has previously stated that “meeting minutes do not constitute an official

action…” Minnesota Cent. R. Co. v. MCI Telecommunications Corp., 595 N.W.2d 533

(Minn. Ct. App. 1999). While that that determination was made in a different context, it is

accurate in this context as well. The minutes, unapproved or approved, do not constitute an

6 See R.C.O. §60.164, (4). Meaning of Words: All words and terms used in this ordinance have their
commonly accepted, dictionary meaning unless they are specifically defined in this ordinance or the
context in which they are used clearly indicates to the contrary. For the purpose of the ordinance, certain
terms or words used herein shall be interpreted as follows:
(4) The word "shall" is mandatory, and not discretionary, and the word "may" is permissive.

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 official report. Plaintiff is correct that the City did not comply with its own Phase II review

process as described in the City ordinances.

17. The City argues that the standard of review is one of substantial compliance and cites to

Itasca County v. Rodenz, 268 N.W.2d 423 (Minn. 1978). While that case does apply a

substantial compliance standard, it does so in context of whether the published notice

adequately informed the public of the hearing and of the enactment of the zoning ordinance.

The substantial compliance doctrine generally applies to whether a decision was statutorily

correct as opposed to constitutionally correct. See City of Minneapolis v. Wuterle, 291

N.W.2d 386 (Minn. 1980) and Stalland v. City of Scandia, 2021 WL 3611371. The issue

raised here goes beyond the sufficiency of a notice or the presence of technical defects.

The issue here is one of procedure which may have impacted the due process rights of

impacted property owners.

18. The Minnesota Supreme Court recently addressed a city’s failure to follow the procedural

steps of Minn. Stat. §462.357 in City of Waconia v. Dock, 961 N.W.2d 220 (Minn. 2021).

The decision focuses on the Legislature’s intent that a city follow zoning procedural

requirements when exercising zoning authority explaining:

Allowing cities to implement zoning regulations without following

statutory zoning procedures bypasses these protections, which raises serious
questions about constitutional and statutory due process. “We have long
upheld a municipality's authority to enact zoning ordinances .... But we also
have recognized limitations—both constitutional and statutory—on that
authority.” White, 840 N.W.2d at 49; see also 1 Salkin, supra, § 8:3
(“Procedural requirements are considered by the courts to be safeguards
against the arbitrary exercise of power. Failure to comply with such
procedural requirements has been regarded not only as an ultra vires act on
the part of municipal legislators, but also as a denial of due process of
law.”); Glen Paul Ct. Neighborhood Ass'n v. Paster, 437 N.W.2d 52, 56–
57 (Minn. 1989) (stating that “[a]dministrative convenience does not
outweigh the right of property owners to statutorily mandated due process”

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 and invalidating a zoning amendment because the city failed to make a bona
fide effort to comply with the notice requirement). City of Waconia, at 237.

The Court went on to state:

Requiring a city to follow the procedural steps contained in section 462.357,

when adopting what is, in effect, a zoning regulation, ensures that a
municipality respects the property rights of individuals when that
municipality seeks to restrict the use and development of private property.
Id.
The Court then found that the failure to comply with procedural requirements of Minn.

Stat. §462.357 rendered the City’s ordinance void. As noted, the decision is specifically

in reference to the procedures contained in the referenced statute. However, our

Supreme Court’s strong statements about the due process implications of the procedural

requirements of the zoning process cannot be overlooked simply because the procedural

requirements are found in the City’s own ordinance versus the state statute. Proceeding

with the public hearing prior to receiving the report from the Commission violates the

City’s own procedural requirements. This in turn has due process implications for the

property owners who sought to oppose the zoning change. They were denied the

opportunity to equally buttress their position with a report. Additionally, other members

of the community were denied the opportunity to review that report prior to the comment

period of the public meeting. Because the City failed to comply with the procedural

requirement of waiting for the Commission’s report, Ordinance No. 4432 is an ultra vires

act rendering it void.

The remaining arguments of Plaintiffs will be addressed even though this issue is

dispositive of the matter before the Court.

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 Absence of a site plan.

19. Plaintiffs argue the absence of a site plan with the application for the rezoning renders

Ordinance No. 4432 null and void. This argument is based on Plaintiff’s reading of Section

J of Appendix B to the Zoning Ordinance and Land Use Manual. The City argues in

response that the cited section applies to an application for a zoning certificate. The zoning

certificate is document that the zoning administrator issues authorizing a development to

proceed. Code §61.110. The proposed project was not yet at that stage. The application

was one for a zoning change. The staff report 7 explains that the zone change must be

approved first and then an application for the development would have to be submitted.

If a zone change is approved, there is a tentative proposal for multi-family

attached rowhouse development on site. This application has not yet been
submitted for review. If the zone change is approved, application review
of such proposal would be a Type I staff level review via site development
plan application. RX 5-001.

This project has not reached that stage. Plaintiff’s argument is without merit.

Ownership of the Property.

20. When the application for rezoning was made, Legacy Investments had signed a purchase

agreement for the Property. Plaintiffs argue that the applicable ordinance provides that an

owner may petition for an amendment to a zoning map. The application was made by Ben

Kall. Plaintiff’s position is that Legacy Investment’s purchase agreement does not make

Ben Kall an owner. While much of the case law focuses on cases involving contracts for

deed, the Court of Appeals has held that a purchase agreement can create an equitable

ownership interest in the purchaser in Tollefson Development, Inv. McCarthy, 668 N.W.2d

701 (Minn. Ct. App. 2003) (holding it was undisputed that the purchase agreement created

7 RX5-001

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 an equitable interest in the purchaser). R.C.O. §60.200 defines an owner as including “the

beneficial owner of land whose interest is primarily one of possession and enjoyment in

contemplation of ultimate ownership.” This statement, like the case law, appears primarily

directed to a purchaser under a contract for deed, as those purchasers have a possessory

interest in the land. Nonetheless, as the Court of Appeals has found a purchase agreement

to create an equitable interest in accord with that of a contract for deed, this Court will

likewise find that purchase agreement creates an ownership interest sufficient under

Rochester’s Zoning ordinance. Legacy Investments as a corporate body is bound by the

actions of its agent, Kall Blumberg v. Taggart,5 N.W.2d 388 (Minn. 1942). Kall’s actions

in representing himself as the owner do not render the application for rezoning and the

subsequent action on that application void. He was an agent acting on behalf of his

corporate principal.

The Legal Description.

21. Plaintiffs and the City acknowledge the application and the resulting Ordinance 4432

contains an incorrect legal description that requires correction. A review of the transcript

of the Council meeting does not indicate that there was any confusion over the area that

was being considered for rezoning. The Rochester Ordinance does require an applicant to

submit a complete legal description and the description submitted was not sufficient.

However, this is not a procedural defect. This is more akin to the notice defects addressed

under the “substantial compliance doctrine”. Under that doctrine the defective legal

description does not render the Ordinance void.

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 ORDER

NOW, THEREFORE, IT IS ORDERED:

1. Plaintiff’s motion of Summary Judgment is GRANTED. Ordinance No. 4432 is

VOID.

ORDER FOR JUDGMENT

The above constitutes the Court’s combined Findings of Fact and Conclusions of Law.

Judgment shall be entered accordingly. There being no just reason for delay, let judgment be

entered accordingly.

____________________________
Troy G. Timmerman
District Court Judge

JUDGMENT

The foregoing shall constitute the Judgment of the Court.

Entered:__________________________ _________________________________
Court Administrator

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