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Chris Boline Appeal Attorney

On February 20, 2018, Dudley and Smith, P.A. attorneys Chris Boline and Joseph Dudley secured a land use victory for their client, LeRoy J. Rossow, Jr., after the Minnesota Supreme Court denied Lake Elmo’s petition asking the Court to review the Court of Appeals decision in favor of Rossow.

Background Facts

Rossow owns ten acres of land in Lake Elmo. In 2014, he proposed that the land be developed into a private, non-denominational cemetery called Halcyon Cemetery. Rossow’s modern vision for the cemetery included re-purposing the existing single-family home into an administrative building to provide room for visitors to gather before seeing a cemetery plot, an administrative office, and interactive features such as a touch-screen allowing visitors to read information about persons interred at the cemetery.

Before he could break ground, Rossow needed to have a plat of the cemetery recorded with Washington County. He submitted a plat application and diligently prepared to develop the site, working with city staff and the city planner, the city engineer, an architectural firm integral in the design of the cemetery, and other entities and agencies. While the planning commission recommended approval of the cemetery plat, Rossow’s cemetery plan was met with public opposition once it reached the city council. During an initial review in July of 2015, city staff recommended that the council approve Rossow’s plat application. Instead, the council tabled their vote. Rossow’s plat came before Lake Elmo’s city council for final review on October 6, 2015, and the council voted to deny Rossow’s cemetery for a number of reasons, including:

  1. That the Halcyon Cemetery plat conflicted with Lake Elmo’s Comprehensive Plan;
  2. That the plat did not comply with Lake Elmo’s zoning ordinance;
  3. That the size of the repurposed administrative building and the maintenance garage for cemetery tools and equipment were not proportional to the size of the cemetery; and
  4. That the proposed uses of the cemetery were prohibited by the relevant zoning ordinances.

Victory at the Court of Appeals

Rossow appealed Lake Elmo’s denial of his cemetery plat. The Minnesota Court of Appeals deemed the city’s denial unreasonable, arbitrary, and capricious. Rossow v. City of Lake Elmo, A17-0077, 2017 WL 5661571 (Minn. Ct. App. Nov. 27, 2017). In a well-reasoned decision  largely focused on the specific language of Lake Elmo’s zoning ordinance, the Court of Appeals emphasized that cemeteries were designated as a permitted use in the applicable Lake Elmo zoning district, and that Rossow’s plat complied with local zoning regulations. Despite the extremely deferential standard applied in reviewing quasi-judicial zoning actions by municipalities, the Court found that each basis for denial cited by Lake Elmo was unreasonable, arbitrary, and capricious. In closing, the Court of Appeals stated, “[b]ecause none of the city council’s findings provides a rational basis for denial, we reverse the district court’s grant of summary judgment to the city and remand to the district court for an order directing the city to approve Rossow’s preliminary and final plat applications.”

Lake Elmo petitioned the Minnesota Supreme Court to review the Court of Appeals’ decision, but the Supreme Court denied review.

Land use cases can be challenging because courts defer to local government action in most instances. However, in those cases when the local government acts outside its lawful authority, developers have recourse through litigation. The outcome in land use cases is highly dependent upon the language in the local zoning ordinances and codes, and it is important that a developer is mindful at all planning stages of the restrictions that may apply to their project.


This post was created by Chris Boline, an appellate, real estate and land use, and commercial litigation attorney at Dudley and Smith, P.A. If you have questions about appeals, real estate, land use, or the prospects of litigation, please contact Mr. Boline at 651-291-1717 or by email at Dudley and Smith, P.A. is a full service law firm with offices in St. Paul, Bloomington, Burnsville, Chanhassen, White Bear Lake, and Woodbury.


The law is continually evolving and Dudley and Smith, P.A.’s blog posts should not be relied upon as legal advice, nor construed as a form of attorney-client relationship. Postings are for informational purposes and are not solicitations, legal advice, or tax advice. A viewer of Dudley and Smith, P.A.’s blog should not rely upon any information in the blog without seeking legal counsel.

February 20, 2018