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HomeMy WebLinkAbout01 23 2012 Agenda Packet4646 Dakota Street SE Prior Lake, MN 55372 PRIOR LAKE PLANNING COMMISSION WORKSESSION AGENDA Monday, January 23, 2012 6:00 p.m. Parkview Conference Room 1. INTRODUCTION 2. LEGAL CASE STUDY REVIEW A. Honn vs. City of Coon Rapids B. Swanson vs. City of Bloomington C. Continental Property Group (CPG) vs. City of Minneapolis 3. OTHER BUSINESS A. 2011 Building Permit Summary B. 2011 Residential Lot Inventory C. 2011 Industrial Lot Inventory 4. ADJOURNMENT Phone 952.447.9800 / Fax 952.447.4245 / www.cityofpriorlake.com Laron K. Honn V. The City of Coon Rapids Case Study 1 L@XIS�eXIS� Laron K. Houn, et al, Respondents, v. The City of Coon Rapids, Appellant No. I-319 upreine Court of Minnesota 313 N. JK2d 409; 1981 Afro r. LEXIS 1526 December 17, 1981 PRIOR HISTORY: [**I] Appeal from District Court, Anoka County; Ikon. Robert Bakke, Anoka 55303, Judge. DISPOSI'T'ION: Reversed and remanded. SYLLABUS I. Certiorari is not a proper procedure to review legislative rezoning decision of a city council. 2. On review of a zoning decision to the district court the parties aro entitled to a trial but evidence is -limited to that presented Before the municipal body or to new or additional evidence relevant to issues that had been raised and considered before the municipal body. . The standard of review in zoning utters is the reasonableness of the municipal body's action, but the nature of the matter under review, whether legislative or quasi-judicial, has a bearing on what is reasonable. . In this case the "agreed upon" record required b the trial court was not adequate to present the city council's denial of a rezoning application for judicial review, and the case is remanded to the trial court for tria 1. COUNSEL: Tanick & Heins, Marshall H. Tanick and Samuel D. Heins, Minneapolis, Minnesota, for Appellant. Page f L.efevere, Lefler, Kennedy, O'Brien & I raxv , Richard J. Schieff'er and James P. O'Meara, Minneapolis, Minnesota. Stanley G. Peskar, League of Minnesota Cities, ] S t. Patti, Minnesota, for Respondent. J I E : Considered and decided by the court en bate without oral argument. Sinionett,, Justice. Sheran, Chief Justice, tock no part in the consideration or decision of this case. OPINION B: SIMOIBTT [*4121 This case involves the decision of a city council refusing to rezone certain land from single-family residential to multiple -unit residential and commercial and the order of the district court reversing that decision. The city appeals. We conclude the review procedure used by the district court was. incorrect and we reverse and remand for trial. The tract involved is about 15 acres of vacant, wooded land lying in the City ofCoon Rapids. It i somewhat triangular in shape, bounded by Foley Boulevard on the northwest and Coon Rapids Boulevard n the southwest, with the eastern boundary, the base of the triangle, bounded by a park and some single-family dwellings. The adjacent land on the opposite side of Foley Boulevard is devoted to commercial use, and on 313 N.w.2d 409, 12; 1981 Minn. LEXTS 1526.) the opposite side of Coon Rapids Boulevard is all industrial park. The boulevards, which intersect at the west end of the traot, are busy, arterial streets. Thus the property, as the trial court [1 pct it, is "t the confluence of a ini tore of commercial, residential and industrial districts." Plaintiff -respondents, Laron, Galen and Carol Honn, purchased the property in 1968 and shortly thereafter petitioned to rezone about 6 acres to multiple -unit residential. The city's planning c innus ion recommended approval but expressed concern that multiple dwellings should not be allowed until sewer service became; available. In November 1968 the city council unanimously approved the planing commission' recommendation for the rezoning but no more was done and the ordinance was never amended. In 1975 respondents filed a new application to rezone 14 acres from single-family residential -2 to multiple -unit residential M and one-half acre to general commercial . This would allow construction of multiple -unit apartments on the 14 acres and various businesses oil the half -acre parcel, At a March planning commission bearing, the commission presented its evaluation of the proposal. The commission stated the Horn development would be a buffer between adjacent commercial and residential zones and would be consistent with broader neighborhood plans and with the city's "goals and policies." [ *4] The commission recommended mended approval of the rezoning application. I The city has no comprehensive ]EWIlicipal plan as def ncd in Minn. Stat. § 462,3.2, subds.. , 1980), but it has adopted a statement of goals and policies. When the recommendation'reached the city council, it ran into strong citizen opposition. At the first reading of the proposed rezoning ordinance, neighbors expre scd fears that the development would destroy the residential character of the area, that increased drainage needs would require increased taxes, and that local recreational facilities would be overburdened.. Possible alternatives were discussed at the second reading in June, but in the enol the city council voted 4 to I to deny rezoning. Respondents Hoiun shed the city in August 1978, bringing a declaratory Judgment action, alleging among other things that the denial of rezoning "exceeds the onin power" of the city. The trial court, instead of 'age 2 conducting a trial, treated the case as one "in the nature of certiora n'"; it instructed [**5] the pales to .prepare an "agreed upon record" of the proceedings before the city council and, after reviewing that record, issued its findings of fact and conclusions of law. The trial court concluded that the city's denial of rezoning was arbitrary, capricious and unreasonable. It therefore ordered the city to rezone the property as recommended by the planning commission. The city appeals. 2 The Honas also alleged the refusal to rezone was a taking giving rise to inverse condemnation but then, before the district court, dropped this Claim. [*4131 we are presented with two issues, broadly stated as: 1 Procedurally, could the trial court, in fashioning a inethod of review, use the certiorari approach; and oil the merits, should the city council's decision have been reversed` 1. - When the parties appeared in district court with their witnesses for trial, the court advised thein there would be no triad as such. Rather, the parties were told to agree upon a record of what had occurred before the city counciI ** ] and present this for review. This was dote. The city assembled the various documents and studies prepared by the planing commission, the city staff and respondents, which had been presented at the city council meeting, plus. a transcript of the tape recording sonne ghat garbled) of the hearings themselves, and the city council's findings of fact detailed findings) and conclusions of law, prepared with the help of counsel and adopted by the council at a special inecting. It was this record, filling a large three-ring loose-leaf binder, that the trial court reviewed and on which it based its decision. Appellant city argues it had no "trial" on its declaratory judgment action, that there was no tale record, no opportunity to examine or cross-examine witnesses or to submit further testimony. Although both parties had originally protested the certiorari procedure, respondents now claire, naturally enough, that all relevant information was before the court and thus there was no need for a trial. In using this Procedure the trial court pointed out its only proper function was to review the i-easonableness of the decision to deny rezoning. "It would be a disservice to 313 N.W.2d 0% *414; 1981 Minn. LEXIS 1526, **10 substantial basis for the action taken. Beck v. City Council of St. Paut, 23.5 Minn. 56, 58, . N. W.2d 81, 82 (1951. Minnesota law is also consistent with coninion law in stating that certiorari is not appropriate to review legislative acts. Alahnerd v. Canfield, 297 Minn. 145, 211 N.TV2d 177 (1973). Our case law has also established that on certiorari a court should only revere when, as a inatter of law, the evidence did not provide a substantial basis for the decision. Haaiand v. Ponnish, 26.3 Minn. 506, 117 N. W.2d 194 (1962); Mate ex red. Spurr k v. Civil Ser -vice Board, 226 Minn. 240, 32 X. W.2d .574 (1948). . Since certiorari is properly used only to review quasi-judicial issues and because rezoning involves a legislative determination, certiorari is not a proper remedy for review here. The distinction between what is quasi-judicial and what is legislative is not always easy to snake, but the argument that rezoning. should be treated [* * 11 I as quasi-judicial was made and lost in State, by Rochester Association of Neighborhoods v. City of Rochester, 268T. W.2d 88.5 (Minn. 1975), In that case we reaff nned our holding that in adopting or amending zoning ordinance, a municipality acts in a legislative capacity; this is tree regardless of the size of the tract involved. See also Sun Oil Co. v. Village age o New Hope, 300 Minn. 326, 220 X J .2d 256 (1974); Beek v. Citi' of St. Paul, .304 Minn. 4.38, 231 N. W. 919 (197.5). Moreover, the traditional standard of review for certiorari is inappropriate here, i.e., whether the evidence provides a substantial basis for the decision. Ordinarily, too, the usual remedy on certiorari is simply to set aside the action taken by the lower tribunal; here, instead, the trial court ordered the city council to rezone. 3. while the foregoing considerations may show the inappropriateness of certiorari to review a rezoning ratter, a more basic question remains. If, as the trial court sags, the only function of the district court is to decide the reasonableness of the city council's decision on the record it had before it, then something like certiorari does s ein proper, for certiorari [**12] brings p the+record below for review. First of all, it should be remembered that the standard of review for legislative zoning decisions is narrow. " s a legislative act, a zoning or rezoning classification must be upheld unless opponents [* 1 ] prove that the classification is unsupported by any Page 4 rational basis related to promoting the public health, safety, corals, or general welfare." State, by Rocliester Association of N t borho . 06; of Rochester, 268 N.1 .2d SS. , 888 (1978). In other words, the test is "rational basis" test. 1 city council has broad discretion in legislative matters, and even if the city council's decision is debatable, so long as there is a rational basis for wb t it sloes, the courts do not interfere. See, e.g., Beck v. City of St. Paul, 304 Minn. 435, 448, 231 X.1 2d 919, .92.E (197.5), and Sun Oil Co. v. Village of New Hope, .300 Alinn. 326, 334, 220 N. TY. 2d 2, 6, 261 (1974). 4. In determining .if there is a rational basis for the city council's decision, should the previewing court consider only the evidence presented to the council or is there a trial de novo, where new evidence may b adduced' Our cases have not dealt specifically with [ *131 this question. In Sun 011, for example, we alluded to a `trial transcript" that was "permeated with testimony and stipulations by which Sun Oil attempts to show that its subject property would male a more suitable site for a service station than the present Shell station site." I , 300 Minn. at .3.34, 220 N. JV. 2d at 261. In some i urisdie tion ,. like Michigan, the trial court holds a de novo hearing, but on the record jade before the zoning body; the trial court is free to draw its own conclusions from the evidence presented below but may not receive new evidence. br hainson v. Mendell, , 7 Mich.App. 2 78, 256 N.1 2d 613 (1977). On the other hand, in Indiana, the trial court in reviewing the actions of a zoning board may receive additional evidence to supplement the record "so long a it confines such evidence to the subjects covered in the hearing before the zoning board." Melropolitan Board o Zoin lig i4pywals v. Gate)tlay Corp., 2.56Ind. 326, 337, 268 N..2d 736, 743 (1971). Prior to 1979 this court reviewed zoning matters like other civil actions. But in that year, in our review of denial of special use permit to Northwestern College in Arden Hills, we announced [**14) a new rile. We held the supe of review adopted in Reser-ve Mining Co. v. Herbst, 2.56 X JV,2d 808, 822 Minn. 1977), for review of state agency decisions was appropriate in reviewing the decisions of local governing bodies in zoning matters. Northwestern College v. City of.4rden Hills, 281 N. JV.2d 865, 868 (1979). we quoted from Reseiipe Mining that our function was "to make an independent examination of an administrative' agency's record and decision" and to arrive at our own conclusions "without according any special deference to the same review conducted by the 313 I .w,2d 409, *416; 1981 Minn. LEXIS 1526, 1 section 555.01, in any proceeding where declaratory relief is sought, in which judgment or decree will terminate the controversy or remove anuncertainty." And section 555.01 sags, "No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for." This broad and flexible reach accorded the declaratory remedy is such that it has become, in many ways, lean all-purpose grit." See Moore's F er al 1'r ac ice, § 57.05(1979). [**18] This procedure should be followed in presenting any zoning matter, whether legislative or quasi-judicial, for review to the district court and for subsequent review to this court. This is not to say that the forin of the action by which the procedure is initiated need always be a declaratory judgment action. Mandaintis has its place, and there may be a quasi-judicial proceeding presenting a legal question to which certiorari still lends itself". See Kara Development Co. v. Shaly,309 Minn. 139, 244 NJV.2d 110 (1976) (where the narrow issue was whether an amendment of the zoning ordinance requiring a two-thirds vote of all the members of the council was accomplished when there were four ayes, two abstentions and one pass). Before proceeding to the last issue before us, it will be helpful to consider briefly the standard of review. 1. Our case law distinguishes between zoning natters which are legislative in nature (rezoning) and these which are quasi-judicial (variances and special use permits). Even so, the standard of review is [*4171 the same f6r all zoning matters, naively, whether the zoning authority's action was reasonable. Our cases express this standard in various [**191 ways: Is there ,reasonable basis" for the decision? or is the decision "unreasonable, arbitrary or capricious"? ricious" or is the decision "reasonably debatable" Nevertheless, while the reasonableness standard is the same for all zoning matters, the nature of the -natter under review has a hearing on what is reason ble. In enacting a zoning ordinance or in amending an ordinance to rezone, the approach is legislative; what is involved is bind of municipal planning in Which a wide range of value judgments is considered. On the other hand, in granting or denying a special use permit, the inquiry is more judicial in character since the zoning authority i Page applying specific use standards set by the zoning ordinance to a particular individual use. State, by Rochester- Association of Neighborhoods v. Cibt Rochester, 258 N. JV. 2d 88.5, 889 Minn. 19 78). 2. For rezoning the standard is whether the classification is reasonably related to the r•oniotion of the public-health, safety, morals or general welfare. State, by Rochester Association of Neigh or ho . , 268 N 1V2d 1dat 888. This conies from Minn. Stat. § 462.3.57, su d. 1 (1980), which says, "For the purpose of promoting the public [**20] health, safety, morals and general welfare" a municipality may regulate land use and improvements thereto by zoning. But the approach is different in special use permit case, where reasonableness i measured by the standard set out in the particular local ordinance, riot the statute. For' example, the secia€ use standard in C.R. Investments, Inc. v. Village o Shoreview, 304 N. JV. 2d 320, 323 (1981), is typical: "If the village Council shall determine the proposed use will not be detrimental to the health, safety, morals, on [sic] general welfare of the community * * the Village Council may grant a special use permit." As we pointed out in Z 1 a v. 04P of Dystal, 28.E Minn. 192, 195, 167 N. T.2d 45, 49 (1969), an arbitrary denial of a special use permit may be found when "the requested use is compatible with the basic use authorized within the particular zone and does not endanger the public health or safety or the general welfare of the area affected or the community as a whole., . In other words, 1 n legislative zoning, the inun1cipaI body is fonnul ting public policy, so the inquiry focuses on whether the proposed use proinotes the public welfare. In quasi-judicial zoning, [**21] public policy has already been established and the inquiry focuses on whether the proposed use is contrary to the general welfare as already established in the zoning ordinance. Consequently, the reviewing courts, its determining what is reasonable, sh6uld keep in mind that the zoning authority is less circumscribed by judicial oversight when it considers zoni 313 N.w.2d 409, *418; 1981 Minn. LEIS 1526, **2 the unusual posture of this case, is whether the "agreed upon" record permitted the parties to present their respective positions fully. [**26] We think not. To reverse the city council's action [*419] denies the appellant city its day in court. To affirm the citycouncil's action deprives respondents Honn of the same right. We conclude, therefore, the ease should be remanded to the district court for triad, . Testimony at trial, for example, might bear on whether the city council's decision was simply a response to neighborhood opposition, as the trial court found, or if it had secure evidentlary basis. The trial court recognized the city council was not required to follow the recommendation of the planning commission but concluded "when the Council fails even to address the Manning considerations put forth by its own experts, the possibility of an unreasonable decision is necessarily raised,' Mere again, testimony at trial may be enlightening. Also, the original classification of this property assingle-family residential is presumed to be well planned and intended to be more or less pen-nanent. See Sun Oil Co. v. Village ofNew Hope, 300 Minn. 326, .335, 220 N. W.2d 256, 261 (1974), quoting Hat-destjp v. Page Zoning Boas d, 211 ,fid. 172, 177, 126 A.2d 621, 623 (1956). The burden is on respondents to show either some L**2 ] mistake in the original zoning or that the character of the neighborhood has changed to such an extent no reasonable use can be made of the property in its current zoning classification. Sun Oil Co., 300 Minn. at 337, 220 N.W.2rl at 261-262. Tile trial court found, "The record as a whole establishes that single family housing is inappropriate for this parcel." Here again, testimony directed at this issue may be helpful. In other Nvords, the parties should have the opportunity at a trial to explain or attempt to explain their actions, having in mind the evidence must be relevant to the issues considered before the city council. Only with this kind of record can the city council's action be reviewed as contemplated by Northitlestern College v. "its o -den Hills, 281 N. TV. 286.5 Minn. 1979). Reversed and remanded for trial. HE AN, Chief Justice, tools no part in the consideration or decision of this case. John Swanson V. City of Bloomington Case Study 2 Lexi�Nexis Page 1 John F. Swanson, et al., Respondents, v. City of Bloomington, Petitioner, Appellant No. C3-86-782 Supreme Court of Minnesota 4.2.E N. JV. 2d 307;1988 Minn. LEXIS 56 March 25, 1958, Filed PRION HISTORY: L ` 1 ] Review of Court of OPINION Y: NVAHL Appeals Court. DISPOSITION: Reversed; judgment of district court reinstated. SYLLABUS 1. The district court properly reviewed the municipal zoning decision on the record where the municipal proceeding was fair and the record is clear and complete. . The district court properly granted summary judgment to the city. COUNSEL: David R. Ornstein, Bloomington City Attorney, Eric R. Berg, Associate City Attorney, Henry E. Wieland, Assistant City Attoniey, Bloomington, Minnesota, for Appellant. Matthew L. Fling, John J. Waters, Bloomington, Minnesota, Vance B. Grannis, Jr., South St. Paul, 1 Minn sots, for Respondent. Amicus Curiae: Stanley O. Pes ar, League of Minnesota Cities, St. Paul, Minnesota. JUDGES: Heard, considered and decided by the court en bane. Wahl, Justice. Popovieh, J., concurring specially. etka, Justice, joins in the special concurrence. OPINION [x`309] Jolm Swanson and ] anald Cadmus brought a declaratory judgment action in Hennepin County District Court challenging the Bloomington city council's denial of ars application to subdivide residential lot in the Tiniberglade 2nd Addition Into two residential lots. Swanson and Cadmus sought to establish that the city's action was arbitrary, capricious and unreasonable [**2] and they requested an order that would compel subdivision or, in the alternative, would find that there was a taking. The district court, after a review of the record, granted summary judgment to the city. The court of appeals reversed and remanded, 395 Xff.2d 719 (1986), holding that respondents were entitled to pursue discovery and to present additional relevant evidence to the district court. We reverse and reinstate the judgment f the trial court. The Tim erglade subdivision of the city of Bloomington is unique. in its densely wooded, secluded character and serves as wildlife as well as human habitat. Its single family homes are typically located on sites exceeding one acre. For thirty years, froin the inception of the Timberglade subdivision ontil tvvo or three years before the present suit was in tituted, landowners there were governed by a restrictive covenant which prohibited subdivision of the large lots and protected its woodedl natural environment. Page 421 1` .w. d 30"7, x`309; 1988 Minn. LEXIS 56, * * Danald Cadmus is the fee owner of the real property at 15 Timberglade Road in the Timberglade s0di ision. John Swanson is the contract purchaser of the property and has resided there since October 1984. The property consists of a residential lot of [**3] approximately 46,000 square feet with a single-family house. Cadmus applied for approval of a preliminary and final plat subdividing the lot into two residential single -fancily lots. The city council (hereinafter council) bele. public hearings and received Britten reports from the city's Director of Planing and the City Forester. The Director of P1atming described the likely results of the creation of a neer lioniesite -- jeopardy to the vegetation on the lot, stress on . the vegetation of the surrounding properties, increased possibility of tree disease and wind dai nage -- and recommended that the subdivision request be denied. The City Forester concurred. A wildlife biologist, testifying on behalf of the neighbors, similarly described the disruptive effect of clearings in the woodland area, loss of windbreak benefits and loss of wildlife habitat. A number of neighbors spore opposing the subdivision. Speaking in favor of the subdivision were Cadmus, Swanson, and a landscape architect presented by Cadmus and SwansoWs attorney. The city council based its decision to deny approval of the preliminary and final plat on section 16.05.01 e of the Bloomington City Code, which provides: (e) In [**4] the case of all plattings, the Planing Commission or the Administrative Subdivision Review Committee, whichever is applicable, shall recommend denial of, and the City Council shall deny, approval of preliminary or final plat if it makes any of the following findings: 1 That the proposed subdivision is in conflict with applicable general and specific plans. That the design or improvement of the proposed subdivision is in conflict with applicable development plans. (3) That the physical characteristics of the site, including but not limited to topography, vegetation, susceptibility to erosion and siltation, susceptibility to flooding, water storage, and retention, are such that the site is not suitable for the type of development or use contemplated. 4 That the site is not physically suitable for the proposed density of development. [*310] 5 That the design of the subdivision or the proposed improvements are likely to cause substantial environmental damage. 6 That the design of the subdivision or the type of improvements will b detrimental to the health, safety, or general Nveifar of the public, 7 That the design of the subdivision or the type of improvements will conflict [*] with casements of record or to easements established by judgtr ent of a court. Specifically, the council made findings under paragraphs 3, , and 6 of section 16.05.1e, concluding that the proposed subdivision would result its substantial destruction of vegetation on the subject site, creating a large opening which would not only be detrimental to the property in question but would also jeopardize existin g vegetation on adjacent properties. The council adopted the findings and memoranda. of the Director of Planning and the City Forester and, on the basis of'the significant destniction of vegetation made. the 421 N.W.2d 3077 11; 1988 Minn. LEXIS 56, declaratory action challenging the denial of a subdivision application, may grant sutnm ry judgment based on its review ofa record consisting of a municipal body's findings, nienioranda submitted by the parties, and verbatim transcripts of all hearings. We determined in Nor hwest r n College [**10] . Cit)' of rden Hills that the scope of review to be used for zoning natters would be the sane as that used for state adni.iiii tr tive .a etic r d clsioiis. 281 N.M.2d 86.5, 868 (Alinn. 1979). We indicated that the review -would be of the record made before the local zoning body. That is, the review by the district: court would be made on the municipal record and the supreme court would make its review on the same record, we said, ducting ser-ve Mining Co. v. Her-bst, 256 IV. JV.2d 805, 824 Minn. 1977)5 "It is our function to make an independent examination of an administrative agency's record and decision and arrive at our own conclusions as to the propriety of that determination without according any special deference to the same review conducted by the trial court." Id. Then in Honn v. Ciop of Coon Rapids, we were presented with a case, appealed by the city from an adverse decision below, where the record before the trial court was Completely inadequate. In that case we held that review on the record was not appropriate. .313 M. JV. 2d at 418. Honn involved a declaratory judgment action in which the court required the parties to agree upon [**11] record of what had occurred before the city council and present this "agreed-upon„ record for review. Based on this after -the -fact record, the district court found the city's action in refusing to rezone the plaintiffs land from single family residential to multiple unit residential and c minerc€al to be arbitrary, capricious, and unreasonable. On appeal, we found the "agreed upon" record required by the district court to be inadequate for judicial review and remanded the case for trial. Honn, 313 N. J . d a 415. Concerned that city councils and zoning boards did not ordinarily make records -of their proceedings a complete and as formal as those of a state agency, wo set out a procedure for review of zoning ivatters which permitted use of a declaratory judgment action in which the parties are entitled to a trial. Id. at 416. I onn did not directly overrule No)-thivestern College and, under its own facts, [*312] was ar proper decision but its broad language, mandating a trial in every case Page 4 niay go b eyond what is necessary in every case. It. is not unreasonable, nor unfair, where a city Inas failed to make a complete and adequate record of its proceedin s L** 1 ] in zoning matters to require that city to prove the basis of its decision before a district court. We are persuaded by aini us curiae League of Minnesota Cities that Honn has had a salutary effect. I Ainicus advises this court that, in reliance on . onn, many cities have bee the expense of verbatini transcripts of their proceedings. These cities have carefully made findings supported by transcribed evidence so that their zoning decisions, if challenged, would not be decided by district court on the basis of evidence never considered by thele. According to aiuicus, one city hircd a. state hearing examiner to take evidence in a zoning matter which resulted in a 15 -day hearing and 3,487 pages of hearing transcript. I {Tile League of Minnesota Cities is a cooperative organization of 782 member Minnesota cities. It becomes clear that this effort and expense would be wasted if every property owner whose zoning request is denied can demand that the case be retried in a district court. Such a procedure, if rigidly followed in every case, could lead to the result that a property owner, knowing the composition of a particular city council, might withhold part of the relevant evidence, ] knowing it could be put in when the matter c nie before the district court on review. Thus, a city, making every effort to afford a property owner a full and fair hearing and t prdue a complete record of the basis of its council's decision, could be thwarted in exercising the power granted it by statute to deter nine and plan the use of lard within its boundaries. Minn. Slat. § 462.351(1982). The court of appeals, in reversing the decision of the district court in the ease before us, relied on Hubbard road asling, Ir e. v. Ci1j, of Afton., 323 N TI'. 5 Minn. 1982). We held in rbbar d the district court properly conducted the review of certain perm t denials on the record because the recon in that case was very clear and complete. Id. at 761. we noted "where 'city councils and ping boards do not brake records of their proceedaigs as complete and formal as those of a state administrative agency or commission,' the proper procedure for review before the district court provides that 'new or additional evidence may be received at triad.' onn v. City of Coon Rapids, 313 N.JV.2d 409, 41.5-1 421 N.w.2d 301, *313; 1988 Minn. LE -1 XIS 5 6.5 * 1 were denied this opportunity. Although they do not challenge the accuracy ofthe council's r atim transcript, they argue that the record does not show the extent to which the council's decision was response to neighborhood opposition, nor does it disclose data on similar prior applications for subdivision. As to the first argument,, the transcript contains all of the testimony given by the neighbors. Beyond that, we do not believe that evidence on the extent to which neighborhood opposition played .a rale is relevant. while neighborhood fueling may not constitute the sole basis for a zoning decision, it may still be taken into account. No t -Ih u res I et -ii Co liege v. a'r'ty of 4 1 -de ri Hills, 281 N. I Y. 2 d 865. Here, the city council's resolution described ..the reasons for its decision and . made clear that environmental concern, not neighborhood opposition, *3141 was the major reason for the denial of the subdivision application. As to data on similar prior applications for subdivision, no claim of unequal treatment is set out, and on these facts, there [ 191 would seem to be none. Swanson is not to be compared with any person ever requesti1119 and receiving or being denied an application for subdivision in Bloomington. He is to be compared with other property owners in the Timber l de 2nd Addition of Bloomington, the unique environment of which is Dere at issue. For 30 years, from its inception until two to three years before wanson's request, that environment has been protected by a restrictive covenant which prohibited subdivision of large lots. Furthermore, the moratorium on the new zoning ordinance was lifted while the council debated this subdivision application. Thus, it is unlikely that sinnilar prior applications for subdivision have been granted. We hold that the district court properly reviewed the municipal zoning decision on the record where the municipal proceeding was fair and the record is clear and coiplete. The second issue is whether the district court properly granted sumniary judgment to the city. Since review is on the record, the question is whether the city couneWs decision was reasonable or whether it was unreasonable, arbitrary or capricious. Herta v. `l ' of Coon Rapids, 31.E NJ . d at 417. [**20] The city council is required by the Bloomington City Code, Page 6 section 1..01e to deny approval of a preliminary or final plat if it finds "that the design of the ubdi i ioii or the proposed improvements are likely to cause substantial enviromnental dans ge." The cit Director of Planning, the City Forester and a wildlife biologist all described the likely ely enwronmn#al effects, including loss of trees and other vegetation both on the lot and on adjacent Properties, wird damage and loss of windbreak effect. The city council's . finding of a likelihood of substantial enviromnental damage is thus supported by the evidence and provides a rational basis for the municipal decision. Such a finding is sufficient reason, cinder the ordinance, for denying the plat application, We hold that the district court properly granted summary judgment to the city. We reverse the decision of the court of appeals and reinstate the judgment of the trial court. Reversed; judgment of district court reinstated. CONCUR 13Y: POPOVICH CONCUR POPOVICH, J.(concurring specially). While I agree with (fie result in this matter based on the facts herd f am concerned that by implication H arr v# 1j, of Coon Rapids nlay be considered [**211 oveinded completely. In my opinion, that Nvould be an inappropriate conclusion, 1. f agree with the court of appeals' analysis ofH nn to provide for a trial to review a zoning matter. This court now circuinscribes a full trial as required by Honn when the record of a municipal pro ecding was fair, clear and complete; finding under the facts of this case that occurred. That, of course, was not the law when the court of appeals considered this natter. Thus, this court now modifies Horror to the extent that a fill trial ole novo is not required its certain cases and the court of appeals could not have known when it decided this matter that Honn was to be modified, as we now do. It correctly applied the lav as it then existed, in nay opinion. New law and new interpretations are prop erly the function o f this court. 2. I have no quarrel with this courts desire to reduce trials de novo in district court and to avoid courts' infringing on the decision-niaking process of municipalities. That is part of this courts function -- t outline, circumscribe and guide the judicial system as part of its supervisory and lain development powers. Continental Property Group V. c ity of Minneapolis Case Study, 6 This opinion w be unpublished and niay not be cited except as provided by Minn. Stat. § 480,4.0 8, s bd 3 (2010). STATE of MINNESOTA IN COURT of APPEALS AI -1072 Continental Property Group, Inc., Respondent, City of Minneapolis, Appellant. `fled May 3, 2011 Affirmedin part, reversed in part, and remanded Se ellhas, Judge Hennepin County District Court File No. 27 -CV -07-5826 William R. Skolnick, Rolm L. Cargill 111,. LuAnn Pet iiel a, Skolnick & Schiff P.A.., . Minneapolis, Minnesota (fog; respondents) Charlcs N. Nauen, Gregory J. Myers, , Lockridge Grindal Na en P.L.L. ., Minneapolis, Minnesota (for appellant) Susan L. Naughton, League of Minnesota Cities, St. Paul, Minnesota for amicus curiae League of Minnesota Cities) John M. Baker, Erin Sind erg Porter, •, Greene Espel .L.L.P., Minneapolis, Minnesota (for amicus curiae American Planning Association) Considered and decided by Se el has, Presiding Judge; Halbroo s, Judge; and Staer, Judge. UNPUBLISHED OPINION SCILLIAS, Judge Appellant City ofMinneapolis challenges the district court's decision that i violated respondent's procedural due -process #fights by depriving respondent of a fair hearing on its lard --use applications. Respondent cro s -appeals to challenge the district court"s dismissal of its other claims for relief. Because we conclude that respondent chid not have a property interest entitling it to due -process protection, we revere the district court's decision that the city violated respondent's procedural due -process rights. W affirni the district court's dismissal of respondent's equal -protection and substantivedue- process claims. But because the hearing before the city council was unfair, rendering the city's decision arbitrary and capricious under state la v, eve reverse and remand for a new caring. FACTS In the fall of 2003, respondent Continental Propelty Group CIG purchased ars option on propefty located at 343, 401, 403, and 409 oak Grove Street, and 416 Clifton .venue, in the Loring Hill neighborhood of Minneapolis. CPG purchased its option with the intention of developing the property. The property consisted of a surface parking lot, which served nearby office buildings, and was zoned as pail of an Institutional office Residence 13 district, The OR3 zoning classification restricts the height of buildings to six stories or 84 feet. Additionally, because the property is located within .,000 feet of the ordinary high-water mark of LoringFond, it is also subject to the standards of the 2 Shoreland Overlay SW district, which imposes a heightrestriction of2-112 stories r 35 feet, CPG engaged an architectural f n n to design the project and assist In the process of applying for needed land -use permits - and variances. CPG settled on one of the architect's designs that included a slender mixed-use tower bordered by two-story a townhouses fronting on the adjacent streets. Because the project design exceeded the height restrictions ofthe two applicable zoning districts, in July 2004, CPG applied for two conditional -use permits CUPs : one to mere se the maximum permitted height from a maximum of 2-1/2 stories or 35 feet to 21 stories and 230 feet; and a second to allow for a multiple -family project containing 104 units. CPG simultaneously applied for two variances: one to reduce the required comer sloe --yard setback off Clifton Place from the required 48 feet to 16 feet for the proposed building and 4 feet for the proposed patio area; and a second to reduce the rear -yard setback off the south property line from the required 45 feet to 19 feet for the building and 8 feet for patios. CPG also requested a major site -plan review, In August of 2004, Minneapolis Community Planning and Economic Development elopment WP staff reviewed the application and issued a 14 -page report recommending that the Minneapolis Planning Commission deny tic application. Later that month, acting on the recommendation of CPBI , the planning commission denied CPG's application by votes of five to two on the CUPs, fire to two on the variances, and six to one on the site plan. 3 In September 2004, CPG appealed the planning commission's decision to the Minneapolis City Council. On September 15, 2004, the alarming commission's decision was rel cd by the cit)t council's zoning and planning committee. The zoning and planning committee comprised five city -council members, including Lisa Goodman. Following its receipt of testimony from CPED staff and CPG representatives, the committee recommended that CPG's application be denied. The committee's vote was unanimous—five to zero. �601 On September 24, by a vote of 13-0, the full city council adopted the findings and recommendation ation o the zoning and planning committee and upheld the Planning commission's denial of CPG"s re e ted CURS, variances, and site -Plan review. Despite the city council's decision, - CPG ' exercised its option to tchase the 2EgeEt in Septemberlater 2004 and, on November 23, submittedfor or second proposed #o' eet on the property. That project design consisted of a seven -story, E77 -foot, required CUPS for height and density aswell as a site lar. review. But the project design required no variances. On January 23, 2005, CPED staff issued a report recommending that the planning Z awwk commission apl ct��� ,aion. But, on Febr23, CPG iiapplication, � citing infeasibility due to higher -than -anticipated construction costs.�,O- -_ I 0,VYV4L4W, , ( 16Aoilee 6% 1 ' n March 27, 2007, CPC sued the City of Minneapolis alleging that the cit council's decision. in 2004, as well as a development moratorium it imposed 1n May 5MA 2005, H ere arbitrary and capricious and violated CPG's equal -protection r hts, entitling aAe' h �j j it to relief under 42 U.S.C. § 1983 2006 . On October 10, 200 8, the district court 4 s�tvn 3 granted the city summary j udgment on CP G's equal -protection claim but al lowed CPG t proceed with its action under adues t ee s t e r and under Minn. Stat. § 462.361, subd. AY -61 � 1 (2010), based on its claire that the city council's actions were arbitrary and capricious. The court ordered a trial to supplement the record of the city -council proceedings and for CPG to challenge the reasonableness of the city's decision and the fairness of theprocess afforded. The court later reinstated Co q's e al fion el L. Y11PI!S VIA Following trial, the district court found that the city violated C G' pro qural . � A due -process rights and concluded that CPG was entitled to comDensatory damages and attorney Fees. The court dismissed CPG's other claims. Appeals by both aides follow., al ber- CPGIs e -Process Claims The district court concluded that CPG was entitled to relief under 42 U.S.C. 1983 because the city did not afford CPG procedural due process in its consideration of C G's land -use application. The city argues on appeal, among other things, that CPG is not entitled to due -process relief because it did not have a protected propei-ty interest in its CUP and variance applications. CPG argues that the district couft erred by dismissing its substantive due -process claim, The United States Constitution provides that the state shall not "deprive any person of life, liberty, or property, without due process of lave." U.S. Cast. aniend XIV, I, As a tl ies .old smatter to any due --process claim, "the plaintiff must identify a protected property interest to which the Fourteenth Amendment's due process protection applies." Sna a v. City of Saint Paul, 548 F.3d f t78, 112 (8th Cir. 200 8); see also E Arextis v. Swift, 785 N.W. d 771, 779 (Minn. App. 2010) ("The-Ilireshold requirement of any due -process claim is that the go ermuer t has deprived a person of a constitutional ly -PEQt ted libeity orproperty interest; in the absence of a liberty r property interest, right to due process does not accrue."). This prerequisite applies to both substantive and procedural due-proces s claims. ,dee Snaza, 548 F. 3 d at 1182 (substantive); S ydi# v. City ofMinneapolis, 441 N.W.2d 781, 791 (Minn. 1989) (procedural). "Property interests aro created and their dimension defined by existing rules or understandings that stein from an independent source, such as state law, isles or understandings that support claims of entitlement to certain benefits." Snyder, 441 N.W.2d at 791 (quotation omitted). "A protected pr pei y interest is a matter ofstate law involving a legitimate claim to entitlement as opposed to a mere subjective expectancy." Snaza,, 548 P.3 d at 11 (quotation omitted). ".A. permit applicant may have a legitimate claim to entitlement if the govermnent's discretion is constrained by a regulation or ordinance requiring issuance of a permit when prescribed terms and conditions have been met." Ick. at 118 emphasis added). The property at issue in this case is located in an OR3 Primary zoning district as well as an SH overlay zoning district. Minneapolis, Minn., Code of Ordinances (MCO) §§ 521.1 (2009),' .30 1999); Minneapolis Official Zoning p Ma Primary Plate f (2010), Overlay Plate 1 2002. The Minneapolis Zoning Code provides that certain uses in the OR3 district are "permitted" while others aro "conditional." MCO 1 Because the relevant ordinances have not materially changed ed since CPG filed its applications, we cite to the most recent versions. 6 547.30(a)—(c) ( Permitted uses "are permitted matted s of right in the district .. . provided that the use complies with all other applicable provisions of this ordinance." MCO § 547.3 ei nphasis added). In contrast, conditional uses are allowed "Provided that the use complies frith all other applicable provisions of this ordi ante" and the person wishing to establish the conditional use "obtain[s] a [CUP] for such se." MCO 547.30(c). Multiple -family dwellings comprising more h four units are allowed only as C�eo ditiorral use,,"'not a "Permitted use," in an OR3 district. MCO § 547.330 (1999). Therefore, a person wishing to establish a multiple -family dwelling of more than four units within the OR3 district must obtain a CLQ'. And a CUP is required for structures over six stories or 84 feet in the oR3 district, and over 2-1/2 stories r 35 feet in the S overlay district. MCO §§ 547.350(a) ( 551.480 (200 8). CPG's proposed project included a 21 --story tower comprising more than four dwelling units. Because the project proposed a conditional use of the property, rather than a Permitted use that CPG could build "as of right," CPGT could proceed with the project only it if obtained a CUP from the cite. And the city's issuance of a CLQ' is discretionary. See Minn. Stat. § 462.3595, subd. f (2010) C'Condi'uses maji be approved by the governing body . y a showing by the applicant that the standards and criteria stated in the ordinance will be satisfied." (emphasis added)); MCO § 525,300 (1999) CcA [CUP] ... allows the city to review uses, which because of heir unique characteristics, cannot he perndtfed as of right a particular zoning district, but which may be allowed upon showing that such use in a specified location will comply with all VA of the conditions and standards of this zoning ordinance." emphasis added)); A moco Oil Co. v. City of Minneapolis, 395 N.W.2d 115, 1 (Minn. App. 1986) ("Conditional r special use permits are zoning devices designed to meet problems that arise when certain uses, although generally compatible with the basic use classification of a particular zone, should not be permitted to be located as a inatter of right in a particular area of that zone." ennpbasis added see also Minn. Stat. § 645.44, subd. 15 (2010) �� � May' is permissive."); MCO § 520.40(4) 2000) ("'The word `may' is permissive."); Bituininous Materials, Inc. v. Rice Cnty., 126 F.3d 10653 loo (8th Cir. 1997)(where ordinance provided that permit "may be granted," grant of pennit was discretionary, and applicant's interest "amount[ed] to nothing- more than an abstract need or desire" (quotation omitted)). If an applicant who meets the bare requirements in an ordinance had an automatic right to a CLAP, the distinction between conditional and permitted uses would be meaningless, CPG therefore N as not entitled to a CLIP simply because it otherwise complied with the ordinance and filed an application. Because CPG could not obtain a CLAP as of right, it dick not have a protected property interest in its CUP application.. Similarly, CPG did not have a protected property interest In its variance application because an applicant has no claim of entitlement to a variance. See Kruininenacher v. City of Minnetonka, 783 N.W.2d 721, 727 (Minn. 2010) (stating that a governing body has broad discretion to grant or deny a variance). Citing Carey v. Piphus for the proposition that {`the right to procedural due process is `absolute' in the sense that it goes not depend upon the merits of a claimant's 8 substantive assertions," CPG argues that it N as not required to demonstrate a protected propeily interest for its due -process claims. 435 U.S. 247, 266 98 S. Ct. 1042, t o (1978). But Carey does not support C G's argument. Carey stands for the proposition that a person has a right to due process regardless of the merits of the substantive claims to be decided at the hearing; the person still must have a property interest at stake to be entitled to due process. See id. at 266, 98 S. Ct. at 1053 ("It is enough to invoke the procedural safeguards of the Fourteenth Amendmenthsignificant l# rt -Y interest is at ,stake, whatever the ultimate outcome of a hearing." (emphasis is added) (quotation omitted)). The right to procedural dine process does not guarantee process for process's sale; the right to clue process guarantees roee for the sale of protecting ars established property interest. To assert its procedural clue -process claim, CPQ therefore was first required to demonstrate that a protected property interest was at stake. Citing Hort , o i me Plaza v. 0 0' of Rochester, 465 N. W . 2 Minn, 1991), CPG argues that it was entitled to a CUP as a matter of right despite the permissive language in the statute and ordinance, In Northpointe Plaza, the supreme court noted that where `the applicant for a CUP complies with the specified permit requirements, approval of a permitted u follows as a matter of right. "' 465 N.W,2d at 689 (emphasis added) (quoting Chanhassen en Estates Residents Ass . City of Chanhassen, 2 N. W.2d 335, 340.(Minn. 1984)). But, hero, CPG applied for a per .it for a conditional use, which the Minneapolis ordinance expressly states is a use that "cannot be permitted as of right.,, MCO § 52.00. In Northpointe Plaza, the parties did "not challenge the lower couils' rulings that [the applicant] had a protectable property interest in the CUP," 465 N.W.2d 01 at 689; the court accordingly did not examine the issue closer, and the statement upon which CPG relies is dictum. Moreover, the ordinance at issue in N r#t rp a to Plaza set out several specific requirements that an applicant must meet before a CUP could be granted. Ick. at 687. Here, in contrast, the ordinance specifically states that a CUP "i a " be granted for uses that "cannot e perinitted as of right," and lists factors that the cite must consider In deciding whether or not to issue the CUP. See MCO §§ 525.300, 340 (1999), 547.110 (2011) (emphasis added). Finally, Noi-thpointe Plaza relied o Chanhassen Estates i phi h the supreme count discussed perinitted, not conditional, uses, stating, `-[T he council's review of an application for a perinitted use need go only to the applicant's compliance with the specific requirements, regulatio s and performance standards prescribed by the ordinance. Subject to such compliance, approval of a permitted use follows as a matter of right." Chanhassen Estates, 3 42 N.W.2d at 340 (emphasis added). (quotation omitted). The Chanhassen Estates court then immediately distinguished permitted uses from conditional uses, which may he denied for reasons other than failure to strictly comply with the ordinance. Id. Not-thpointe Plaza therefore does not establish a rule that an applicant has a per se pr'oper'ty interest in a CUP application. CPG also argues that it had a protected pr'oper'ty interest in the form of its option to purchase the subject property. But the property interest at stake in the context of a denial of due process relative to a land -use application is the application itself, not the tyle to the underlying property. See Sana, 548 FJd at 1183 (stating that a plaintiffs fee title in the land did not entitle her to due process with respect to a CUP where the plaintiff "has not to presented any evidence that she has been denied her fee simple title in the land"). The Sna a count noted that there were "over 70 principal uses for a property" in the given F zoning district that were. "allowed without obtaining a [CUP]."' Ick. Similarly, in this ease, at the time CPG filed its application there vete 19 per fitted uses to which CPG could put the propetly "as of right" and for which a CUP would not be required, see- MCO ee- MCO § 547.30(a), (b) (2004), and there are now 25 such permitted uses, see MCO 7.3 a , (b) (2010). Because the city did not deprive CPG of its interest in the property, C G's interest in its option to purchase the property did not entitle it to due process with respect to the CUP. Because CPG did not have a protected propeily interest in its CU and variance applications, we conclude that it had no constitutional right to due process in the application -review p�+ocess. The. district couil therefore correctly dismissed CPG' substantive due -process claim. but erred: by granting- CPG, relief on the basis that the city violated its right to procedural due process. Statutory JuNcial Review under Minn. Start, § 462.3 61, u . At-guing that the city council's decision was arbitrary and capricious, CPG maintains that the district court erred by dismissing its claim for judicial review under Minn. Stat. § 462.361, subd. 1. 2 We review ."the, decision of the city council independent ent Although on appeal CPG characteri es its challenge as one to the district court's decision on its substantive due -process clairn, CPG's argument and cited eases demonstrate that its challenge is to the district count's decision on its state -lav claim as well. As the district court noted, CPG seems to conflate two bases of relief with similar legal tests --statutory judicial review of land -use decisions under Minn. Stat. § 462.361, subs. 1, and substantive due process under the federal constitution. Although both tests f the findings conclusions ofthe i r i court." VanLandschoot v. City ofMendota Heights, 336 N.W.2d. 503, 508 (Minn. 1983). But where the district count has found that the municipal record Nvas inadequate and allowed discovery and a trial to supplement the record, iAre may use the district court's record In conducting out review. See SlIonson v. a`r'ty of Bloomington, 421 N.W.2d 507, 313 (Minn. 1 (noting that the put -pose o allowing a trial to supplement the municipal record is to enable "satisfac oiT review"). Minnesota law provides that a person aggrieved by a city council's land -use decision is entitled to judicial review In district court. Minn. Stat. § 462.361, sub d. 1, reviewing court must "determine whether the municipality's action ... was reasonable." V nLands oo , 336 N.W.2d at 508. The decision is unreasonable if "it was arbitrary and capricious" or "the reasons assigned by the governing body 'do not have the slightest validity or baring on the general welfare of the immediate area." Id. (quotation omitted). Generally, a decision to deny a CUP application is arbitrary if the applicant meets the standards specified by the zoning ordinance. Yang v. C . o C r iter , 660 use the words "arbitrary and capricious,"' these irord carry different meanings. Compare VanLandschoot v. Ci , f Mendota Reights, 336 N.W.2d 503, 507-08 (Minn. 1983) (discussing standard under state law), ii4th Arorthpointe Plaza, 465 N.W.2d at 689-90 (discussing standard under federal constitution's due -process clause). The district court noted that because "[flhe Federal threshold is higher than the threshold under Minnesota law[j ... it logically follows that if [CPC's] claim fails under Minnesota lave, it mus also fail under Federal lay." CPG argues that "[w]Iia, as in this case, a zoning ordinance expressly authorizes the proposed use by conditional use permit, the City's denial of the permit must be for reasons relating to public health, safety and general welfare," citing C.R. Invs., Inc. v. Village of S omvie i , 304 N. W. 2d 320, 324 (Minn. 1981). But the standard set forth in CA Invs. is merely the default standard rd that applies when the ordinance clues not set forth specifie issues for the city to consider. Condor Corp. v. City ofSaintPal , 91.2 F.2d 21 , 221 (8th Cly. 1990) (citing Zy1ka iv.a'r'ty o, f 031stal, 283 Minn. 192, 195, 167 N.W.2d 12 N.W.2d 828, 832 (Minn. App. 2003) (citing Zy1ka v. City of Ostal, 283 Minn. 192, 196, 167 N.w.2d 45, 49 (1969)). But a decision is also arbitrary and capricious if the decision -maker "relied on factors it is not permitted or intended to consider." In r Charges� f'i•o, fessional Conduct Contained in Panel F 98-26, 5.97 I .W.2d 563, 567 Minn. 1999); see also In re Block, 727 N.w.2d 166, 17 Mitm. App. 2007) (mentioning this standard in the CUP context). Although a city council has broad discretion to deny land -use permits, we may invalidate its decision if it did net act i good faith., VanLandschoot, 336 N.w.2d at 508-09. We agree with the district court that the city council's decisions to deny the C Ps and variances had some basis in the record: the record contains evidence that CPG' proposal was inconsistent with the scale and character of the neighborhood and might block views of landmarks, open spaces, or bodies of water, which were sufficient uses to deny the CUPS under MCO §§ 547.I1'0(3), (4), 551.480(3); (4); and CPG made no showing whatsoever of the "undue hardship" necessary to support a variance under Minn. Stat. § 462.357, s bd. 2) (2010), and Krummenacher, 783 N.w.2d at 727-28. But when deciding CPG's procedural due -process cl im' , the district coull found that Co ncilmember Goodman, who took part in making the council's decision: "took a position in opposition and exhibited a closed mind with regard to [CPC's] proposed project prior to hearing [CPC's] appeal"; "adopted an advocacy role its. opposition to [CPC's] proposed project well before she discharged her quasi-judicial duties"; and "was 53 49 (1969)). Here, the ordinance enumerates factors for the city's consideration. Therefore., the default "public health, safety, and general welfare" standard does net apply. 13 clearly involved +in an effort not only to assist to organize and mobilize neighborhood opposition to the project, but also to sway the opinions of her fellow council members." The couil also noted that "the opinion of the council member In whose Nvard a project i proposed is given substantial weight" by other members of the council. The court' findings, which are supported by the record, establish that the city council relied on factors it was not intended or permitted to consider in denying G's applications, We therefore conclude that the cityr council's decision was arbitrary and capricious and that the district court erred by upholding it on review under Minn. Stat. § 462,361, subd, 1. We turn now to the appropriate remedy. In Kruminer, r, the Minnesota Supreme Courtrecognized that the standard remedy for the arbitrary -and- capricious denial of a land -use permit is an order that the permit be issued. 783 N.W.2d at 732-3 (quotation omitted). "But," the court continued, "there is an exception to this general rule when the zoning authority's decision is premature and not necessarily arbitrary." .fid. at 733 (quotation omitted). Concluding that the city council had applied the incorrect legal standard in its initial determination, the court remanded the case to the city council to allow the applicant to have her application considered under the correct legal standard. Ick. at 732, 733. Here, like in Kruininenacher, the city council's decision would not necessarily have been arbitrary and capricious had the council followed the correct standards and procedures in considering CPG's applications—namely, had it not allowed a biased councilmen ber to participate in the decision. Under Krunimena her, we therefore remand to the Minneapolis City Council for a new hearing and decision, CPG's Equal -Protection Claim CPG argues that the district ict court end by dismissing its equal -protection claim. The Equal Protection Clause of the Fourteenth Amendment requires the government t "treat all similarly situated people alike." Barslad ip. Mtu-i-ay Cn , ,, 420 F.3d 880, 884 (8th Cir. 2005). The threshold inquiry in a zoning case is whether the denied applicant was "similarly situated" to successful applicants. Id. The applicant must then demonstrate that there was no rational basis for differential treatment. Id. CIG has failed to meet its burden on the tl i -es old requirement that it identify Ccsimilarly situated" successful applicants. CPG's brief mentions in conclusory fashion that it was "intentionally treated differently by the City than others similarly situated," but Fails to identify the applicants or explain how they were similarly situated. CPG's equal -protection claim therefore fails. The City. Council'se e o me t Moratorium CPO argues that the district court erred by dismissing its "claim for damages related to the development moratorium imposed selectively by the City in April 2005." In its complaint, CPG alleged: . In April 2005, Councilmember Goodman introduced an ordinance to impose moratorium on all development in the Loring Hill neighborhood. The alleged basis for the moratorium was to allow the City to have detailed study prepared concerning the impact of the development on neighboring buildings and the community. The City imposed the moratorium in May 2005. t5. The City acted arbitrarily and capriciously with respect to the moratorium because it discriminated against [CPG] and the City did not exercise good faith in imposing it. The moratorium interfered with. CPG's revised plan to build a seven-stor-y structure . comprising three stories of offices atop four stories of parking. On September 16, 2009, between the liability and damages phases of the trial, the district court issued its order dismissing all of CO's *claims except its procedural6e- process claim. The court stated that CPG "was denied a fair hearing on its appeal by the Zoning and Planning Committee tee and, subsequently, by the City Council,"' and the court permitted CPG to present damages evidence on that claim alone. Despite the court's limitation on the scope of damages to be tried, CPG submitted a proposed damages calculation asserting "more than $17 million damages it attributed to the moratorium and the office tower concept." And CPG also submitted a trial memorandum stating that it had additional evidence to present on the moratorium issue, which the court had "not allowed" it to 'resent during the liability phase. The district court denied CFO's request to submit additional. evidence- ori- the- moratorium issue and- clarified that CPG -"s claims with respect to the moratorium were "dismissed with prejudice." On appeal, CPG does not challenge the district couft's dismissal of the statutory for or constitutional claims that it night have had arising out of the moratorium's 's allegedly arbitrary and capricious nature—CM'G's substantive rgume s are aimed entirely at the city's denial of its CUP and variance applications, rather than the moratorium. But CPG does argue that the district couil should have allowed it to present evidence of damages related to the moratorium, even though the court found liability only with respect to the fairness of the hearing on the CUP and variance requests. This is an evidentiary and procedural issue—CPG challenges the manner in which the district court directed that evidence offered for trial. "Matters suchtrial procedure [and] evrulings .. are subject to appellate review only if there has been a motion for a new trial in which such matters have been assigned as error." Sauter v. Wasemiller, 389 N.W.2d Zoo, 201 (Mitm. 1986). Because CPG did not move for a new trial, it failed to preserve this issue for appeal. Damoges Both panties challenge the district court's damages award, which was based on CPG's 42 U.S.C. § 1983 claims that the city had violated its constitutional rights. As we have already concluded, CPG was not entitled to relief on its constitutional claims. And money damages are not appropriate under Minn. Stat. § 462.361, subd. 1, for wrongful denial of a land -use permit. See Kr•umme a her, 783 N.W. d at 732-33 (noting that if denial is arbitrary and capricious, "the standard remedy is that .the court orders the permit to be issued.")!- CaH Bold &. ,fi r v. City of Minneapolis, 378.. N.W.2d' 826-, 829. (Afinn. App. 1985} (stating plaintiff "has shown no Minnesota eases in which money damages were awarded for the wrongful. denial of a building permit"), revieu, denied (Minn. Feb. f, 1986). CPG's available remedy in this ease is a fair hearing before the city council. We conclude that CPG is not entitled to monetary damages, and we reverse the district court" s damages award. AttorneFees The district court awarded CPG attorney fees under 42 U.S.C. § 1988(b) (2006), which authorizes fee awards to prevailing parties in section 1983 cases. Based on our + 17 conclusion that CPG is not entitled to relief on its constitutional claims, we reverse the district court"s attorney -fee award. The city argues that it is entitled to an award of attorney, fees on the basis that a section 1983 defendant may be entitled to a fee award if a lawsuit is initiated or continued in bad faith and for the purpose of harassment. See Bufordi?. Trentayne, 747 F.2d 445, 448 (8th Cir. 1984) (affirming fee award where plaintiff " as more interested i harassing those persons he deemed responsible than vindicating his rights in a bona fide a suif'); Air.ndl i� 4ssuran Co. i?. Teasdale, 733 F.2d, 569 (8th Cir. 1984) (affirming fee award where plaintiff brought suit to harass and attack the integrity of defendant and offered no evidence s ppoili g claims); see also Mimi, Stat. § 549.211, subd. 2(l), 3 20 o) (providing that district court may sanction party Nvho presents a chin for an "improper purpose, such as to harass''). The city points to evidence in the record suggesting that CPG did not genul ely expect- o- vin- i � court, but: instead- sought only to "exact [its] revenge on thosewho have wronged [it]" and to force Councilmember Goodman "to pay a price for this." . The district court was not persuaded that CPG manufactured this lawsuit for the purpose of harassing the city; nog; are we. Although CPG did not successfully prosecute its constitutional ciahns, its complaints were not unfounded -we have upheld the district court's finding that CPQ did not receive a fair hearing, We therefore decline to award attomey fees to the city. A `fl fined In part, reversed in part, and remanded. 18