Coalition for Non-profit Student Housing, Relator, vs. City of Minneapolis, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA IN COURT OF APPEALS

A03-1873

 

Coalition for Non-profit Student Housing,

Relator,

 

vs.

 

City of Minneapolis,

Respondent.

 

Filed October 5, 2004

Affirmed

Gordon W. Shumaker, Judge

 

Minneapolis City Council

Agency File No. 2003R-495

 

 

 

Richard D. Snyder, Fredrickson & Byron, P.A., 4000 Pillsbury Center, 200 South Sixth Street, Minneapolis, MN 55402-1425 (for relator)

 

Jay M. Heffern, Minneapolis City Attorney, Carol E. Lansing, Michael J. Rugani, Assistant City Attorneys, 333 South Seventh Street, Suite 300, Minneapolis, MN 55402-2453 (for respondent)

 

 

            Considered and decided by Stoneburner, Presiding Judge; Shumaker, Judge; and Wright, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

GORDON W. SHUMAKER, Judge

 

Respondent-city designated as historic certain fraternity and sorority houses, which relator-coalition owns.  On appeal, the coalition argues that (a) the criteria the city used for defining the extent of the Greek Letter House Historic District were arbitrary and capricious, where distinctions were drawn between houses built as chapter houses and houses used as chapter houses; the period of significance used in defining houses built as chapter houses was arbitrarily selected; the city's creation of a "district" comprised of noncontiguous properties was arbitrary; and similarly situated properties were treated differently; (b) the designation criteria are unconstitutionally vague; (c) in applying the criteria, the city failed to consider the economic impact and regulatory burden of the designation on the properties in question; and (d) the city's designation process deprived the coalition of due process of law because the coalition was not given adequate notice of the designation.  We affirm. 

FACTS

            Relator Coalition for Non-Profit Student Housing (the coalition) is a non-profit organization representing the interests of 28 student-housing organizations that own the buildings and land that house fraternities and sororities of the University of Minnesota.  On March 17, 2002, Delta Tau Delta Fraternity submitted plans to the zoning office of respondent City of Minneapolis to demolish its residential building.

Under the Minneapolis Heritage Preservation Regulations, the planning director of the Heritage Preservation Commission (the commission) reviews all applications for demolition permits.  If the property is a historic resource, the proposed designation goes through review and approval by the commission.  Review includes consideration of seven criteria.  If the commission determines that the property meets at least one of the criteria, it may direct the planning director to commence a designation study of the property to document the historical, cultural, architectural, archeological, or engineering significance of the property.  Following a public hearing, the commission makes findings and a recommendation to the city's zoning and planning committee before the proposal goes to the full city council, which makes the final decision on all designations. 

            On August 20, 2002, the commission held a meeting to discuss Delta Tau Delta's application.  The commission voted to retain Carole Zellie to conduct the designation study and on September 3, 2002, sent a letter to all interested parties informing them of the study. 

            To determine which properties met the criteria for historic designation, Zellie obtained property history and ownership information from various historic and academic publications, atlases, maps, city directories, and archives.  The study focused on the four-block Fraternity Row of University Ave. S.E., from 15th Avenue S.E., and on a 14-square block area from University Ave. S.E. to 8th Street.  The record shows that in establishing the boundaries for the study area, the planning department created a preliminary map using current assessor's use codes from current file information and various other sources, including city directories from 1885 through 2002, the University of Minnesota Address Book, and City of Minneapolis plan cards and building permits. 

A total of 81 properties were evaluated based on a specific period of significance, historic integrity, and the property's significance as it related to the historic context of chapter houses at the university.  Regarding the period of significance, Zellie's report and the supplemental report state:

The period of significance for the University of Minnesota Fraternity Row Historic District is 1907 to 1930.  Although fraternities began renting or purchasing houses for chapter use by the 1880s and the first was built in 1883, [the period of significance] encompass[es] the district's earliest extant house (1907) through construction of the last (1930) in the early years of the Depression . . . . 

 

The period of significance for other chapter houses is 1911 through 1936.  These dates encompass the earliest extant chapter house built "off the Row," and extend to the construction of the last few built during the Depression (1936). 

 

The study focused on the period before 1936, when pre-Depression era chapter creation and building activity was most intense.  However, several well-conserved examples of modern architectural design are among the remaining chapter houses constructed after 1950. 

 

 . . . .

 

Greek life and Greek houses did not, of course come to a halt in 1936.  While fraternities and sororities experienced a post-World War II resurgence, and a new phase of remodeling and new construction began in 1950, historic designation (at local as well as National Register level) typically does not apply to buildings constructed in the past fifty years. 

 

Some properties listed as being in "poor" condition were recommended for designation if most of the historic architectural details remained intact, despite poor maintenance and disrepair.  Likewise, one property with "fair" historic integrity was recommended for designation because, "[d]espite alterations to the stucco and entry, it still exemplifies the scale and style of the pre-World War I period."  Various properties that had been remodeled were not recommended for designation because the remodeling resulted in loss of significant historic architectural features. 

            The report also considered each property within the historic context of chapter houses during the period of significance.  The report provides several pages of the history of fraternities and sororities at the university, and concludes:

Today, one hundred and twenty years after the construction of the first Greek letter chapter house at the University of Minnesota, the resilient historic chapter houses represent a social and cultural tradition and a contribution to the institution's broad pattern of higher education.  They also are an important component of urban development and architectural history in Minneapolis, and many are significant examples of their building type and style. 

 

To delineate the properties within the study area that best show the architectural and historic aspects associated with chapter houses during the period of significance, the report recommended properties for designation with intact, historic, architectural features that had been built as, or remodeled for use as, chapter houses.  The report states that these properties have certain standard characteristics specific to chapter houses, such as the chapter room, library, and terrace.  "Even if these features were altered over time, their original design links them to the evolving building type summarized in . . . national architectural publications." 

With the exception of two properties, the report did not recommend property built as private residences for designation.  The two exceptions are properties that were built as private residences but extensively remodeled for chapter-house use during the period of significance.  These houses were recommended for designation because they were remodeled to duplicate the characteristics of chapter houses during that period.  The report explains that a property built as a private residence, with some chapter use in its history, is "exemplary of the large, stylish houses occupied by fraternities and sororities in the early twentieth century.  However, greatest historical significance derives from [their] earlier period as a private residence associated with persons important to the history and development of Minneapolis."  The report concluded that the properties on the university's fraternity row and 11 other chapter houses within the study area met two designation criteria of the city's Heritage Preservation Regulations, under Minneapolis, Minn., Code of Ordinances § 599.210 (1991). 

The commission sent a letter dated May 23, 2003 to all property owners within the proposed district notifying them of the recommendations for designation and explaining where to obtain a copy of the report.  This letter also informed the property owners that the commission would hold a public hearing regarding the possible designation, for which they would receive notice.  The commission then sent the report to the State Historic Preservation Office and the city planning commission, which adopted the findings and recommendation of the report. 

On August 19, 2003, the commission held a public hearing on the proposed designation of the chapter house historic district.  Amy Lucas, of the city's planning department, presented a report recommending approval of the historic designation to the zoning and planning committee of the city council.  The report states:

The proposed designation promotes the preservation of historic resources and supports the following goal and policies of The Minneapolis Plan:

 

Goal 6.  Preserve, enhance and create a sustainable natural and historic environment citywide.

 

Policy 1.7.  Minneapolis will recognize and celebrate its history.

 

Policy 9.2.  Minneapolis will continue to preserve the natural ecology and the historical features that define its unique identity in the region. 

 

Policy 9.4.  Minneapolis will promote preservation as a tool for economic development and community revitalization. 

 

Zellie also presented her findings and report to the commission.  Over 25 individuals voiced opinions about the designation.  Considerable evidence was presented regarding the economic impact that the proposed designation would impose on the properties within the designation, including the time-consuming regulatory burdens and the additional costs to repair property.  In addition, three representatives of the coalition, including their counsel, were given time to express their opposition to the designation. 

On September 16, 2003, the commission held a supplemental meeting to further discuss and vote on whether to approve the designation.  Zellie provided a supplemental memo describing the rationale for the study area and discussing how the designation criteria were applied to the proposed district.  The supplemental memo also contains an "Errors and Omissions" section and gives additional information on properties based on information that came to light at the meetings.  Following the meeting, the commission voted to adopt the findings and recommendations of the report to designate the chapter-house district as historic.

On October 2, 2003, the zoning and planning committee of the city council considered the proposed designation.  Zellie presented the report and proposed designation, and a representative of the commission gave further testimony as to the objections to the proposed designation.  The zoning and planning committee voted to forward the designation decisions to the full city council with a recommendation for approval.  On October 10, 2002, the city council approved Resolution 2003R-495 officially designating the chapter-house district as historic. 

The coalition petitioned this court for writ of certiorari on December 5, 2003. 

D E C I S I O N

I.

A city's historical-preservation-designation proceedings are quasi-judicial in nature.  Handicraft Block Ltd. P'ship v. City of Minneapolis, 611 N.W.2d 16, 24 (Minn. 2000).  This court reviews quasi-judicial determinations by writ of certiorari.  Id.  The standard for review of a governmental zoning decision is whether it was unreasonable, arbitrary, or capricious.  Carl Bolander & Sons Co. v. City of Minneapolis, 502 N.W.2d 203, 207 (Minn. 1993).  The review focuses on the legal sufficiency of and factual basis for the reasons given.  Swanson v. City of Bloomington, 421 N.W.2d 307, 313 (Minn. 1988). 

Parameters and Period of Significance

Relator first argues that the city's designation of the chapter-house district was arbitrary and capricious because the parameters of the designation are not justified by the designation criteria and the period of significance used in defining houses built as chapter houses was arbitrarily selected.  A city's zoning decision is arbitrary and capricious when it is "based on whim or is devoid of articulated reasons."  In re Proposal by Lakedale Tel. Co., 561 N.W.2d 550, 553 (Minn. App. 1997) (quotation omitted). 

A decision may be deemed arbitrary and capricious only if: (1) it relied on factors not intended by the ordinance; (2) entirely failed to consider an important aspect of the issue; (3) offered an explanation that conflicts with the evidence; or (4) it is so implausible that it could not be explained as a difference in view or the result of the city's expertise.

 

Rostamkhani v. City of St. Paul, 645 N.W.2d 479, 484 (Minn. App. 2002). 

Here, the city found that the historic designation met criteria 1 and 4 of the Minneapolis Code of Ordinances § 599.210.  The first criterion is that "[t]he property is associated with significant events or with periods that exemplify broad patterns of cultural, political, economic or social history."  Minneapolis, Minn., Code of Ordinances § 599.210(1) (1991).  The report states that the district is associated with the expansion of the University of Minnesota and the contribution the Greek chapters made to that expansion.  In addition, the staff report indicates that the historic designation comports with the Minneapolis plan to preserve historical features; celebrate its history;preserve, enhance, and create a sustainable natural and historic environment citywide; and promote preservation as a tool for economic development and community revitalization. 

The fourth criterion requires that "[t]he property embodies the distinctive characteristics of an architectural or engineering type or style, or method of construction."  Id. at§ 599.210(4).  Thus, those properties that were either built as or remodeled as chapter houses during the significant period and that retained specific characteristics of chapter houses were recommended for designation. 

In determining the significant period, the report states that the period of significance encompasses fraternity row's earliest extant house (1907) through construction of the last (1930) in the early years of the Depression; and that the period of significance for off-row chapter houses is 1911 through 1936, because these dates encompass the earliest extant house built "off the Row," and extend to the construction of the last few built during the Depression.  The supplemental report further explained that although there are several examples of post-WWII properties, the National Register does not typically include designations from the last 50 years. 

The record shows that the city based its decision on a 182-page report, transcripts from various meetings, supplemental reports, and presentations from the opposing sides.  Thus, here the parameters were not arbitrary and capricious because the city did not act on whim and the record contains articulated reasons for the parameters of the historic designation and significant period. 

Non-contiguous Properties

Relator next argues that the creation of a non-contiguous district was arbitrary.  The Minneapolis Code of Ordinance § 599.110 defines a historic district as "[a]ll property within a defined area designated as an historic district by the city council because of the historical, cultural, architectural, archeological or engineering significance of the district, or designated as an historic district by state law."  The ordinance does not state that a historic district has to be a contiguous area.  The fact that a historic district is non-contiguous does not automatically make the designation arbitrary.  As stated above, all properties within the district embody the distinctive characteristics of chapter houses during the period of significance.  The district is a defined area because of historical significance and is not an arbitrary designation simply because the properties are non-contiguous.

Similarly Situated Properties

Relator also argues that similarly situated properties are treated differently within the parameters.  "A zoning ordinance must operate uniformly on those similarly situated."  Northwestern College v. City of Arden Hills, 281 N.W.2d 865, 869 (Minn. 1979); accord Hay v. Township of Grow, 296 Minn. 1, 7-8, 206 N.W.2d 19, 24 (1973).  "Disparate treatment of two similarly-situated property owners may be an indication that the local government is acting unreasonably or arbitrarily."  Billy Graham Evangelistic Ass'n v. City of Minneapolis, 667 N.W.2d 117, 126 (Minn. 2003).

In Hay, two parties in the same township filed applications for special-use permits to construct mobile home parks.  Hay, 296 Minn. at 2, 206 N.W.2d at 21. Only one application was granted.  Id.  The court stated:

The minutes of the town board meeting at which plaintiffs' application was denied disclose only a general discussion of various factors which apparently motivated the town board's decision.  The extremely brief treatment accorded these factors was not remedied during the subsequent judicial proceedings . . . .  The absence of a factual basis for [the town board's] inarticulate conclusion renders it no reason at all.

 

Id. at 6-7, 206 N.W.2d at 23.

Here, relator contends that Property No. 64 located at 1025 6th St. S.E. and Property No. 26 located at 1100 4th St. S.E. are historically and architecturally indistinguishable.  The record shows, however, that Property No. 64 was built as a private residence and remodeled for use as a chapter house and Property No. 26 was built as a chapter house.  Thus, if Property No. 64 had been recommended for designation it would be as an exception to the "built as" criterion such as applied to Property Nos. 5 and 29, which were remodeled as chapter houses during the period of significance.

The report states the Property No. 64 "is representative of the extensive remodeling that converted some private residences to chapter houses."  However, the supplemental report shows that this property was apparently excluded from those recommended for designation because it could not be determined whether the remodeling occurred during the period of significance or over many years.  Thus, Property No. 64 was not similarly situated. 

Relator also argues that Property Nos. 34, 36, 45, 50, 53, 56, 60, 63, and 75 are also similarly situated but treated differently within the parameters.  The record shows that Nos. 45 and 75 were not built as or remodeled for use as a chapter house during the period of significance.  The record shows that Nos. 60 and 63 derive historical significance as private residences rather than from periods of chapter use.  The report states that while Nos. 34 and 53 were built as chapter houses during the period of significance, they underwent remodeling that stripped them of significant historical features.  Property No. 36 was remodeled for use as a chapter house during the period of significance but lacks historical integrity because the extensive remodeling altered significant architectural features.  Finally, the supplemental report shows that for property No. 56, the "[b]uilding permit doesn't appear to match this house . . . [and there is] [n]o evidence of major chapter house remodeling." 

Here, unlike in Hay, the city's reasons for the historic designation have a factual basis that was supplied either by the initial report or the supplemental report, which was prepared following extensive questions and comments at the public hearing.  Thus, similarly situated properties were not treated differently within the parameters of the study.

II

Relator also argues that the designation criteria of the City's Heritage Preservation Regulations, contained in the Minneapolis Code of Ordinances, are unconstitutionally vague.  An entity challenging the constitutionality of an ordinance on vagueness grounds "must show the [ordinance] lacks specificity as to [its] own behavior rather than some hypothetical situation."  Ruzic v. Comm'r of Pub. Safety, 455 N.W.2d 89, 92 (Minn. App. 1990), review denied (Minn. June 26, 1990).  In Handicraft, the Minnesota Supreme Court reviewed the city's preservation ordinance and held,"[w]e conclude that these guidelines, when applied to a specific property, establish specific criteria that curtail the discretion of the city when it chooses to designate that property.  By using language that is mandatory and not permissive, the City circumscribed its ability to designate any building for heritage preservation that did not meet [the] criteria." Handicraft, 611 N.W.2d at 22-23 (footnote omitted).  While the city has revised the criteria since Handicraft, the criteria upon which the city based its decision are significantly similar to the criteria at the time of the Handicraft decision, are widely used and accepted, and are not unconstitutionally vague. 

III

Relator also argues that the city failed to consider the financial and regulatory impact of the historic designation on individual properties.  A decision will be deemed arbitrary and capricious if a city "failed to consider an important aspect of the problem."  Trout Unlimited, Inc. v. Minn. Dep't of Agric., 528 N.W.2d 903, 907 (Minn. App. 1995), review denied (Minn. April 27, 1995).  Under the city's Heritage Preservation Regulations, the historic-designation process does not consider the regulatory and economic impact on proposed property.  The procedure designated for an individual property owner who wishes to alter a historically designated property better assesses the actual cost impact of a regulation because it is at that time there is a specific development proposal to consider for a specific property.  Thus, the city was not required to consider the financial and regulatory burdens in the abstract, and its failure to do so does not deem its decision arbitrary and capricious. 

IV

            Relator argues that the city's historic designation process violated the property owner's right to due process.  This court reviews the procedural due process afforded a party de novo.  Zellman ex rel. M.Z. v. Indep. Sch. Dist. No. 2758, 594 N.W.2d 216, 220 (Minn. App. 1999), review denied (Minn. July 28, 1999).  The record shows that the commission followed the Minneapolis Code of Ordinances in its procedures and sent letters notifying affected parties of the report and of the public hearing on August 19, 2003.  The record also shows that affected parties corresponded extensively with the commission and the various committees involved in this process and that 28 people testified at the public hearing.  Thus, the property owners were not deprived of due process. 

            Affirmed.