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MemoDate: April 18, 1986 To: Nancy Anderson From: Jerre Miller MEMO JAM CITY OF HOPKINS 1010 FIRST STREET SOUTH HOPKINS, MINNESOTA 55343 612/935 -8474 You have requested my opinion on the impact, if any, on existing and conforming single family residences by increasing from 20,000 square feet per lot to a larger size. Legally, a municipality may amend supplement, revise or repeal restrictions imposed in its zoning ordinances but similar to the power a city possesses to enact the original plan, such changes must be exercised reasonably and in furtherance of the public health, safety and welfare of the citizens. What this means is there must be a valid municipal reason to support the proposed change. You have also raised the issue of the impact on such lots which after the amendment would contain less than the minimum square feet required by the change. If such a result will occur, you will produce an adverse effect on dwellings located on lots which are below the minimum lot size inasmuch as they will then not be in conformance with the ordinance. As a non - conforming use, the restrictions contained in the non - conforming use section of the zoning ordinance will apply. These restrictions pertain to the inability of the owner to replace or improve the property. Another consideration would be whether this would have some impact on the ability of financing or re- financing such dwellings that are now in non- conformance with the ordinance. To summarize, in order to legislate an increase a minimum lot size, two principal issues must be addressed: a) such implementation must be based on sound and reasonable purposes intended to accomplish a municipal benefit and b) the impact of creating non - conforming uses by doing so. I have copied a case for you entitled Odell vs. City_of Eagan, 348 NW 2d 792 in which a city's denial of a lot subdivision was overturned by the Appellate Court. The Court found the denial of the division was unreasonable. An Equal Opportunity Employer Date: March 28, 1986 To Nancy Anderson From: Jerre Miller CITY OF HOPKINS 1010 FIRST STREET SOUTH HOPKINS, MINNESOTA 55343 612/935-8474 You have requested that I reduce to written opinion my earlier comment to you concerning the procedure for the Planning and Zoning Commission to recommend a moratorium on subdivisions in residential areas pending their assumption of a study on the subject. It was suggested to you that the Planning and Zoning Commission determine that it should undertake a study on this subject and recommend to the City Council that it impose a moratorium on future applications or subdivisions during the period of the study and pending the publication of the report by the Planning Commission. Normally, if a moratorium is based on valid concern and studies of this nature, they are generally considered to be within the legislative authority of the City so long as the moratorium period does not remain in effect for an unreasonable period of time. Six months to a year is generally considered a reasonable period of time Concerning your inquiry about the effect the declaration of a moratorium would have on pending applications for subdivision, 1 don't think such action would affect proceedings now pending or applied for before the Council or Planning Commission. The suggested procedure was for the Council to adopt an interim ordinance declaring a moratorium as provided for in M. S. 462.355, Subd. 4. It is appropriate the Planning and Zoning Commission promptly act in the fashion we discussed prior to its meeting in order to give the City the opportunity to act on the request at its next meeting. It may also be advisable to declare a moratorium by a motion or resolution at the City Council hearing in order to cover the time frame that will run until the interim ordinance is adopted. An Equal Opportunity Employer 792 Minn. 348 NORTH WESTERN David R. and Patricia B. ODELL, Appellants, v . CITY OF EAGAN, Minnesota, Respondent. No. 08-83 -1623. Court of Appeals of Minnesota. May 8, 1984. Landowners, whose application for a waiver of plat and whose subsequent appli- cation for preliminary plat approval had been denied by city, brought declaratory judgment action. The District Court, Da- kota County, M. Eugene Atkins, J., dis- missed the action and denied landowners' motion for amended findings, and landown- ers appealed. The Court of Appeals, Hus- peni, J., held that: (1) garage was a non- conforming structure and not a noncon- forming use of zoning ordinance requiring a 30 -foot side yard setback from public streets and, therefore, retained its protec- tive status pursuant to a grandfather clause even after creation of a new lot out of property on which it was located; (2) denial of landowners' application for preli- minarly plat approval, which met all subdi- vision zoning requirements, was unreason- able; and (3) landowners were not denied due process in the decision- making process or deprived of their property without due process of law and, therefore, were not entitled to attorney fees or damages pursu- ant to federal statute allowing an action for enforcement of civil rights. Reversed and remanded. 1. Zoning and Planning 4+701 In reviewing zoning decisions of local governing bodies, the Court of Appeals makes an independent examination of the record to reach its own conclusions, with no special deference granted to trial court's findings. REPORTER, 2d SERIES 2. Zoning and Planning X610 Goal of review of zoning decisions of local governing bodies is to determine whether the municipality's action was rea- sonable. 3. Zoning and Planning 4=21.5 Reasonableness of a local municipali- ty's zoning decision is measured by stan- dards in the local ordinance, not the state statutes. 4. Zoning and Planning 4=34 Municipalities are constitutionally re- quired to treat similarly situated people alike in applying standards contained in local zoning ordinances. 5. Zoning and Planning x605 If reasons for a local municipality's zoning decision are given, reviewing court examines the record to see if the reasons are legally sufficient and have a factual basis. 6. Zoning and Planning €574 Record available to court reviewing a municipality's zoning decision includes rele- vant evidence received at trial. 7. Zoning and Planning 4=21, 151 A municipality has broad discretion in zoning matters, particularly in enacting a zoning ordinance or rezoning. 8. Zoning and Planning 4=606, 607 When variances and other special uses are considered, city counsel functions in a quasi-judicial capacity and is subject to more extensive oversight. 9. Zoning and Planning 4=603 Once zoning ordinances are enacted, less weight is given to the municipality's legal interpretations of its ordinances than on questions of fact. 10. Zoning and Planning 4=381.5 When a subdivision ordinance specifies standards to which a proposed plat must conform, it is arbitrary as a matter of law to deny approval of a plat which complies in all respects with the subdivision ordi- nance. 11.5 dinar decks 12. 2 nano ordin strict the p 13. 2 lic st purst foot : and r the k that there whict chant since tion, the g setba 14. Z li twin k ters t nants whett nary sion o 15. Z4 A hood cient 1 tion fc the ,st subdi% 16. Zr purpo: ble col detern cation ing a not su ODELL v. CITY OF EAGAN Minn. 793 Cite as 348 N.W.2d 792 (Minn.App. 1984) 11. Zoning and Planning X231 to thereby justify city's denial of landown- Interpretation of an existing zoning or ers' preliminary plat application. dinance is a question of law for a court to decide. 12. Zoning and Planning €231 To 'interpret terms in a zoning ordi- nance, a court looks to their plain and ordinary meaning and uses the least re- strictive interpretation, protecting rights of the property owner. 13. Zoning and Planning €323, 381.5 Garage located within 30 feet of a pub- lic street was a nonconforming structure pursuant to city ordinance requiring a 30- foot side yard setback from public streets, and not a nonconforming use, since it was the location of the garage and not its use that did not conform to the ordinance and, therefore, a proposed split of the lot on which the garage was located did not change the nonconformance in any way since the garage remained in the same loca- tion, and the garage would retain benefit of the grandfather clause as it related to the setback requirement. 14. Zoning and Planning €437 Restrictive covenants governing cer- tain lots in a subdivision were private mat- ters to be resolved by parties to the cove- nants and not by the city in determining whether to grant an application for prelimi- nary plat approval involving the subdivi- sion of one of the concerned lots. 15. Zoning and Planning €381.5 Aesthetic considerations and neighbor- hood opposition are generally not a suffi- cient basis for refusal to grant an applica- tion for preliminary plat approval involving the subdivision of a lot which meets all subdivision zoning requirements. 16. Zoning and Planning €435 Even if subdivision ordinance's stated purpose of promoting an attractive and sta- ble community could be used as standard in determination of whether to grant an appli- cation for preliminary plat approval involv- ing a subdivision of the lot, evidence was not sufficient to support such concerns or 17. Zoning and Planning €381.5 Denial of landowners' application for preliminary plat approval involving the sub- division of their lot, which preliminary plat met all subdivision zoning requirements, was unreasonable. 18. Civil Rights €13.3(1), 13.5(2) In an action to enforce civil rights, a person must be deprived of a right secured by the United States Constitution and laws by another person and such deprivation must be done under color of law. 42 I.S. C.A. § 1983. 19. Civil Rights €13.7 Local governmental units are persons for purposes of federal statute allowing an action to enforce civil rights. 42 U.S.C.A. § 1983. 20. Civil Rights x13.17(13) In any action to enforce civil rights under federal statute allowing such ac- tions, the,court, in its discretion, may allow attorney fees to the prevailing party. 42 U.S.C.A. §§ 1983, 1988. 21. Constitutional Law 4=278.2(2) In order for landowners, whose appli- cation for preliminary plat approval had been unreasonably denied by the city, to prevail on their claim that they were enti- tled to attorney fees pursuant to federal statute allowing an award of attorney fees to prevailing party in an action to enforce civil rights on ground that the denial of approval was a deprivation of property without due process of law, Landowners were required to establish that they pos- sessed a legitimate claim of entitlement to the preliminary plat approval and a unilat- eral expectation was not sufficient. 42 U.S.C.A. § 1983; U.S.C.A. Const.Amend. 14. 22. Constitutional Law €252.5 There is no constitutionally protected interest in state law procedures. 794 Minn. 348 NORTH WESTERN REPORTER, 2d SERIES 23. Constitutional Law €252.5 The due process clause does not con- vert every statutory right into a constitu- tional entitlement. U.S.C.A. Const.Amend. 14. 24. Constitutional Law €277(1) Procedures such as a preliminary plat application process are designed to prevent arbitrary action but there is no property interest in being fairly considered in the process. U.S.C.A. Const.Amend. 14. 25. Constitutional Law €277(1) Landowners' property interest in a pre- liminary plat application process is the award of the preliminary plat approval it- self. 26. Constitutional' Law €278.2(2) Landowners, whose application for pre- liminary plat approval had been unreason- ably denied by city, were not denied due process in the decision- making process and did not suffer a deprivation of property without due process of law, where they had full hearings before the city counsel and the planning commission, had opportunity to present witnesses and other evidence, and the counsel fully expressed all objec- tions considered by them and stated their reasons for refusing approval. U.S.C.A. Const.Amend. 14. 27. Civil Rights €13.4(1), I3.17(10) Landowners, whose application for pre- liminary plat approval had been unreason- ably denied by the city but who had not been denied due process in the decision- making process and had not suffered a deprivation of property without due pro- cess of law, were not entitled to attorney fees or damages under federal statute al- lowing actions to enforce civil rights. 42 U.S.C.A. §§ 1983, 1988; U.S.C.A. Const. Amend. 14. Syllabus by the Court 1. The denial of plaintiffs' application for preliminary plat approval, which met all subdivision zoning requirements, was un- reasonable. 2. Plaintiffs are not entitled to dam- ages or attorney's fees under 42 U.S.C. §§ 1983, 1988 (1976). Daniel J. Beeson, South St. Paul, for appellant. David G. Keller, Eagan, for respondent. Heard, considered, and decided by WOZNIAK, P.J., and HUSPENI and NIERENGARTEN, JJ. OPINION HUSPENI, Judge. Appellants submitted applications for waiver of plat and for preliminary plat approval to the Eagan City Council, with the intent of subdividing their residential lot. Both applications were denied by the council after separate hearings. The trial court dismissed appellants' subsequent de- claratory judgment action, and denied their motion for amended findings. Appellants claim their applications were improperly de- nied and that they are entitled to compen- satory damages under 42 U.S.C. §§ 1983, 1988 (1976). We reverse and remand. FACTS Appellants David and Patricia Odell own a one -acre lot in the City of Eagan. The lot is located in the McCarthy Ridge Addition which consists of twelve comparably sized lots, and is zoned for residential use. An oversized detached garage sits near one corner of the lot, approximately twelve feet from the lot line. The Odells purchased the lot in March, 1982, with the intention of subdividing it into two lots. Prior to purchasing the lot, the Odells spoke with the Eagan city plan- ner, and later met with the city administra- tor. Both officials indicated the proposed • split met city ordinance requirements. The city planner advised appellants of the prop- er procedures to receive approval of their plans. One alternative is to request a waiver of plat, which waives the subdivi- sion requirements. A more costly method is to file a pr a new subdi' proposals are ory Planning issues a recoi cil, which ma Parcel One includes the i 26,830 square the existing c of 16,682 sqt quires a min size. City or foot side yarc The garage back, but wa ceptable non. the time the The Eagan the Odells' aF May, 1982. Advisory Plat indicate any The commi ing. Owners appeared in o raised cover neighborhood which prohibi The commiss dation of the reasons and shown. At the cit) stated that 11 the cost of pl vision, and tl; tion restrictec a large lot. and submittec ed that the pi stroy the chat precedent for creased densi restrictive co than one acre were motivat true hardshi:: waiver, suggt would be a 1 utes note the .h it ►t, n- a- �d Ie P ir a i- d . for dent. by and for plat with itial the trial de- heir Lilts d wn lot ion :ed kn ne !et ODELL v. CITY OF EAGAN Minn. 795 ate as 348 N.W2d 792 (M1nn.App. 1984) is to file a preliminary plat for approval as that the proposal appeared to change the a new subdivision. Under both methods, character of the neighborhood, the prece- proposals are first considered by the Advis- dent issue appeared important, and that no ory Planning Commission. The commission hardship was shown. issues a recommendation to the City Coun- At the same meeting, the council granted cal, which makes the final decision. a waiver of plat for a single- family residen- Parcel One of the proposed subdivision tial lot split in another addition. This one includes the existing home and consists of required a variance for the smaller lot, 26,830 square feet. Parcel Two includes which was under the 12,000 square foot the existing detached garage, and consists minimum. The only hardship shown was of 16,682 square feet. City ordinance re- that the lot was larger than necessary for a quires a minimum 12,000 square foot lot home. There were no objections by neigh - size. City ordinance also requires a thirty y foot side yard setback from public streets. In August, 1982, the city planner re- The garage does not conform to the set- back, but was grandfathered in as an ac- ceptable nonconformance in existence at the time the ordinance was passed. The Eagan city planning staff reviewed the Odells' application for waiver of plat in May, 1982. They issued a report to the Advisory Planning Commission that did not indicate any deficiencies in the proposal. The commission then held a public hear- ing. Owners of other McCarthy Ridge Lots appeared in opposition to the waiver. They raised concerns about the character of the neighborhood and restrictive covenants which prohibited lots of less than one acre. The commission voted against recommen- dation of the waiver, referring to the above reasons and indicating no hardship was shown. At the city council hearing, the Odells stated that there was hardship involved in the cost of platting for such a small subdi- vision, and that David Odell's heart condi- tion restricted their ability to maintain such a large lot. Neighbors again protested, and submitted a petition. The petition stat- ed that the proposed subdivision would de- stroy the character of the area, would set a precedent for future splits resulting in in- creased density and related problems, that restrictive covenants prohibited lots less than one acre in size, and that the Odells were motivated by financial gain, not any true hardship. The council denied the waiver, suggesting that a preliminary plat would be a better method. Council min- utes note the above objections, emphasizing viewed the Odells' subsequent application for preliminary plat approval. His report indicated the plat met minimum subdivision regulations. After a hearing, the Advisory Planning Commission did not recommend approval. Neighbors again spoke in opposition at the city council hearing in September. For the first time, it was noted that the garage would face the probable front lot line of the new Parcel Two, and would violate that thirty foot setback. In response to the council's request, the city attorney issued an opinion stating that "the Council does not have a good basis for denial of the plat in relation to the stan- dards set by any of the ordinances ". He advised any denial would have td be based on a violation of the intent of the Subdivi- sion Ordinance, and possibly the uncertain- ty of the restrictive covenants issue. The Odells submitted legal opinions that the covenants had expired. On October 5, 1982, the council denied the Odells' application for preliminary plat approval, and on October 19 adopted a for - mal resolution incorporating all previous objections. The Odells filed a declaratory judgment suit alleging the denials were arbitrary and capricious. At trial, a former city council member testified that the only hardship usually required for a waiver of plat in a single lot split was the cost of platting. The Odells presented expert testimony that there would be no adverse effect on the 796 Minn. 348 NORTH WESTERN character of the neighborhood. They noted that the city had granted six waivers for residential lot splits between 1979 and 1982 denying only two, including the Odds'. The other denial was based on danger due to the location of a gas pipeline and failure to show hardship. The specific hardship was never expressed when waiv- ers were granted. The trial court found the denials reason- able and dismissed the suit. The court further denied plaintiffs' motion for amend- ed findings and conclusions of law, indicat- ing that the sole reason for his decision was the garage, as a nonconforming struc- ture. ISSUES 1. Whether the Eagan City Council's de- nial of appellants' application for prelimi- nary plat approval based on the existence of the nonconforming garage was reason- able. 2. Whether the Eagan City Council's de- nial of appellants' application for waiver of plat for a residential single lot split based on lack of hardship was reasonable. 3. Whether appellants are entitled to damages, costs and attorney's fees pursu- ant to 42 U.S.C. § 1983 and § 1988. • ANALYSIS [1) 1. In reviewing zoning decisions of local governing bodies, this court makes an independent examination of the record to reach its own conclusions, with no special deference granted to the trial court's find- ings. Northwestern College v. City of Ar- den Hills, 281 N.W.2d 865 (Minn.1979). [ The goal of review is to determine whether the municipality's action was rea- sonable. Honn v. City of Coon Rapids, 313 N.W.2d 409 (Minn.1981). Reasonable- ness is measured by standards in the local ordinance, not the state statutes. White Bear Docking and Storage, Inc. v. City of White Bear Lake, 324 N.W.2d 174 (Minn. 1982). Municipalities are constitutionally required to treat similarly situated people REPORTER, 2d SERIES alike in applying those standards. North- western College, 281 N.W.2d at 869. [5-9] If reasons for the decision are given, the court examines the record to see if the reasons are legally sufficient and have a factual basis. VanLandschoot v. City of Mendota Heights, 336 N.W.2d 503 (Minn.1983). The record includes relevant evidence received at trial. Honn, 313 N.W.2d at 416. A municipality has broad discretion in zoning matters, particularly in enacting a zoning ordinance or rezoning. However, when variances and other special uses are considered, a city council func- tions in a quasi - judicial capacity, and is subject to more extensive judicial over- sight. Id. at 417. Once the ordinances are enacted, less weight is given to the munici- pality's legal interpretations of its ordi- nances than on questions of fact. Frank's Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604 (Minn.1980). .[10] When a "subdivision ordinance specifies standards to which a proposed plat must conform, it is arbitrary as a matter of law to deny approval of a plat which complies in all respects with the sub- division ordinance ". National Capital Corp. v. Village of Inver Grove Heights, 301 Minn. 335, 337, 222 N.W.2d 550, 552 (1974) (quoting Hay v. Township of Grow, 294 Minn. 1, 5, 206 N.W.2d 19, 22 (1973)). The primary reason for denial of the preliminary plat application was the non- conforming garage. This is apparent in the transcript of the council hearing. Council member Egan moved to deny the application based on three considerations: 1) the nonconforming garage, 2) aesthetic considerations, and 3) the restrictive cove- nants. After some discussion, he agreed to delete the second and third reasons to fo- cus on the primary objection of the garage. The resolution denying the plat, signed two weeks later, resolves to deny the appli- cation "based upon those reasons cited above and including the fact that the ga- rage ... is currently a nonconforming use and to authorize a split of the lot ... would cause an expansion of a nonconforming use .. further t would be cre City Council, October 19, 1 In its Anss Admissions, t "The prelimit mum standar nance, except Council that in a new non- the Zoning counsel's brk on the garal denial. Eagan argi conforming u status with t quiring a var it is a noncot istence is fur split. City P at the declar garage is not The termini nance disting ing structure Code § 52.05 stricts noncoa subd. 3, but d ing structures [11,12] TI ing zoning of for a court City of Eagan To interpret t looks at their Frank's, 295 nances should the city and i er." Id TIN tine interpret the property [13] It is does not con rages are a p not change way. While setback rathe in the same 1c ODELL v. CITY. OF EAGAN Minn. 797 Cite as 348 N.W.2d 792 (Minn.App. 1984) ... further that a new nonconforming use same public street, and is still used as a would be created ..." Resolution, Eagan garage. City Council, October 5, 1982, signed October 19, 1982 We find the garage is a nonconforming structure as defined i n the ordinance. The In its Answers to Plaintiffs' Requests for building itself retains the benefit of the Admissions, Number 14, Eagan admits that grandfather clause, and it is not condi- "The preliminary plat meets all the mini - tinned on its surroundings. mum standards of the Eagan zoning ordi- nance, except for the opinion of the City [14,15] In the resolution, the council Council that [the] preliminary plat results cited the concerns of the neighbors over in a new non - conforming use in violation of the character of the area, the precedential the Zoning ' Ordinance ". Respondents' value of permitting a lot split, and the counsel's brief and oral argument focused restrictive covenants. The restrictive cove - on the garage as the prime reason for nants are private matters to be resolved by denial. the parties to the covenant, and not the Eagan argues that the garage is a non- city. Aesthetic considerations are general - conforming use, which loses its protected ly not a sufficient basis alone. See White status with the creation of a new lot, re= Bear, 324 N.W.2d at 177 -78. Nor is neigh - quiring a variance. The Odells argue that borhood opposition. Northwestern Col - it is a nonconforming structure whose ex- lege 281 N.W.2d at 869. istence is functionally unrelated to the lot These concerns relate to the stated pur- split. City Planner Dale Runkle admitted pose of the subdivision ordinance. The Ea- at the declaratory judgment trial that the San Subdivision Ordinance, section 10.01, garage is not a nonconforming use. subd. 1, states that the purpose of the The terminology is significant. The ordi- ordinance is to promote an attractive and stable community. This is a vague state - nance distinguishes between nonconform- ment At least one court has held that ing structures and uses. EAGAN MINN, Code § 52.05, subd. 2(ZZ), (AAA). It re- similar language in a preamble "cannot stricts nonconforming uses in section 52.06, serve as an independent source of authori- subd. 3, but does not regulate nonconform- �' fo ppYo g plats." Southern ing structures. Coop. Dev. Fund v. Driggers, 696 F.2d 1347, 1351 (11th Cir.1983). [11,12] The interpretation of an exist- ing zoning ordinance is a question of law (16) Even if the stated purpose could be for a court to decide. Amcon Corp. v. used as a standard, there is not enough City of Eagan, 348 N.W.2d 66 (Minn.1984). evidence to support those concerns to rea- To interpret terms in the ordinance, a court sonably deny the preliminary plat applica- looks at their plain and ordinary meaning. Lion on that basis. The Odells presented Frank's, 295 N.W.2d at 608. "Zoning ordi testimony at trial from a city planning con - nances should be construed strictly against sultant that there would be no adverse the city and in favor of the property own - effect on the area. A real estate appraiser er." Id The court uses the least restric- and former Eagan council member con - tive interpretation, protecting the rights of curred. The only evidence regarding dam - the property owner. age to the area came from neighbors em- (13) It is not the building's use that phasizing reliance on the restrictive cove - does not conform, but its location. Ga- Hants. rages are a permitted use. The split does (17) While we remain respectful of the not change the nonconformance in any discretion given to local governing bodies, way. While it may become a front yard we find that in this case the Eagan city setback rather than a side yard, it remains council did not have a reasonable basis on in the same location, is equally dose to the which to deny the Odells' preliminary plat • North- ). ion are 1 to see nt and hoot v. .2(1 503 !levant 2, 313 broad arty in zoning. special funs. ind is over- es are munici- ordi •auk's mule, plat sub - pital ghts, 552 'row, 173)) the non - t in Ong. the ons: letic n ve- d to fo- tge. ned 911- ted ga- 'se 798 Minn. 348 NORTH WESTERN REPORTER, 2d SERIES application when it met the requirements of the Eagan subdivision ordinance. 2. Because we find the preliminary plat was improperly denied, we do not reach the issue of the denial of the waiver of plat. 3. The Odells further claim they were denied their rights of due process, alleging that the denial of the preliminary plat was arbitrary and capricious. [18-20) A § 1983 action has two ele- ments. First, a person must be deprived of a right secured by the United States Con- stitution and laws by another person. Sec- ond, it must be done under color of law. Local governmental units are persons for purposes of § 1983. Monell v. Depart- ment of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed2d 611 (1978). In any action to enforce civil rights under § 1983, a court, in its discretion, may allow attor- ney's fees to the prevailing party under § 1988. [21] The only cognizable right involved here is the alleged deprivation of property without due process of law, in violation of the Fourteenth Amendment. To prevail on this claim, plaintiffs must fast establish that they possessed a legitimate claim of entitlement to the preliminary plat approv- al; a unilateral expectation is not suffi- cient. Molgaard v. Town of Caledonia, 527 F.Supp. 1073 (E.D.Wis.1981); Tumulty v. City of Minneapolis, 511 F.Supp. 36 (D.Minn.1980). [22 -25] There is no constitutionally pro- tected interest in state law procedures. Vruno v. Schwarzwalder, 600 F.2d 124 (8th Cir.1979); Molgaard, 527 F.Supp. at 1080; Tumulty, 511 F.Supp. at 38. The due process clause does not convert every statutory right into a constitutional entitle- ment. Vruno, 600 F.2d at 131. Proce- dures such as the Eagan preliminary plat application process are designed to prevent arbitrary actions, but there is no property interest in being fairly considered in the process. Tumulty, 511 F.Supp. at 37. The property interest is the award of the pre - liminary plat approval itself. Molgaard, 527 F.Supp. at 1081. [26] Further, the Odells were not de- nied due process in the decision- making process. They had full hearings before the council and the planning commission. They had the opportunity to present wit- nesses and other evidence. Contos v. Herbst, 278 N.W.2d 732, 742 (Minn.1979). The council fully expressed all objections considered by them and stated their rea- sons for refusing approval. Although the council's reasons for denying plat approval were legally insufficient, it does not amount to a deprivation of property or a denial of due process. [27] Since plaintiffs do not prevail on - their § 1983 action, they are not entitled to attorney's fees under § 1988. DECISION For the above reasons, we remand to the Dakota County District Court for the is- suance of an order directing the Eagan City Council to grant plaintiffs' preliminary plat approval. Reversed and remanded. Harry KOZAK, Appellant, v. John N. WEIS, Respondent. No. C7-83-1970. Court of Appeals of Minnesota. May 15, 1984. Action was brought to establish bound- ary line between properties and for dam- ages for trees defendant cut on the disput- ed strip of land. At close of plaintiff's case in chief, the District Court, Sherburne County, Spencer J. Sokolowski, J., directed verdict based on failure to establish the boi Co (1) dec on mo wa bel tab me fici ift ori1 ve3 tins disc sur did evi' wa wog the the tim wa beli tab evic to 1 ren ner gov 2. 1 put in c dos tabl mis 48 1 01. 3. 1' war at c mal