author: ANDERSON, RUSSELL A., Justice.

text:
    Harry JOHNSON, Appellant (C7-01-1676), Margot Siegel, et al., Appellants (C4-01-1683), v. The CITY OF MINNEAPOLIS, et al., Respondents.
    Nos. C4-01-1683, C7-01-1676.
    Supreme Court of Minnesota.
    Aug. 14, 2003.

      Michael C. Mahoney, Mahoney & Hag-berg, Wayzata, MN, David F. Herr, Mas-Ion Edelman Borman & Brand, Minneapolis, MN, for Appellants.
    Susan Lee Trammele, Minneapolis City Attorney Office, Minneapolis, MN, for Respondent.
    Susan Lynn Naughton, St. Paul, MN, Amicus Attorney League of Minn. Cities.

      Paul Thomas Eidsness, Chanhassen, MN, Amicus Attorney Minnesotans for Protection of Constitutional Standards.
   OPINION

ANDERSON, RUSSELL A., Justice.

Appellants commenced an inverse condemnation action against respondents, the City of Minneapolis and its development agency, the Minneapolis Community Development Agency (hereinafter referred to collectively as “the City”), seeking compensation for the diminishment in rents and value of their properties caused by a “cloud of condemnation” over their properties for many years while respondents pursued redevelopment of the property and later defended litigation brought by the developer. Following trial with an advisory jury, the district court concluded that respondents’ conduct constituted a com-pensable taking of appellants’ properties and awarded appellants damages. The court of appeals reversed, finding no com-pensable taking under the United States Constitution because respondents did not exercise “significant control” over the appellants’ properties during the period for which compensation was sought. We conclude that the district court’s extensive findings are not clearly erroneous and that the unique facts of this case require compensation under the Minnesota Constitution. We reverse.

In December 1983, the City adopted a redevelopment plan for three and one-half blocks in the southern part of Nicollet Mall in downtown Minneapolis as part of an effort to promote urban development around the Minneapolis Convention Center and increase the downtown Minneapolis tax base. The development district — from 9th Street to 11th Street and from Marquette Avenue to LaSalle Avenue — included commercial retail and office properties owned by appellants. In 1985, over the objection of the Mayor of Minneapolis, the City granted exclusive negotiating rights for the development of a retail project on south Nicollet Mall to La Societe Generate Immobiliere (LSGI), a French development corporation. The City then established a tax increment financing district within the development district and adopted a tax increment financing plan.

Over the mayor’s veto, the City approved a development contract, executed on November 3, 1986, between LSGI and the City. The contract imposed mutually escalating obligations on both parties, requiring LSGI to secure anchor tenants for the project before the City was obligated to acquire the targeted properties by eminent domain. In addition, the development contract required LSGI to submit periodic progress reports to the City, which the City was required to keep confidential. The City also had the right to approve proposed project design plans and reserved the right to approve the final project design.

LSGI proposed a dome-and-tunnel design for Nicollet Mall, in which Nicollet Mall would be converted to a pedestrian-only street with a dome overhead and a tunnel underneath for automobile traffic. LSGI obtained preliminary tetters of corn-mitment from two potential anchor tenants, Nordstroms and Neiman Marcus. The City, however, did not approve of the dome-and-tunnel design. On November 3, 1987, the development contract’s closing date, the City and LSGI entered into a post-closing agreement allowing LSGI to continue negotiating with anchor tenants while creating a second design plan that would maintain Nicollet Mall as an open urban street with no enclosure and at-grade transportation. The post-closing agreement required the City to deliver to LSGI a 99-year lease for all of the properties in the development district, which would be delivered at the time the City acquired the properties needed for the development project, and provided that “[e]ach of the parties hereto agrees to use their best efforts” to cooperate with each other.

On November 5 and November 16, 1987, less than two weeks after the post-closing agreement was signed, the mayor wrote letters to Nordstroms and Neiman Marcus regarding the LSGI development project. According to the district court, these letters, written while the confidentiality provision in the development contract was in place, suggested that LSGI had not been honest with the prospective anchor tenants and were intended “to discourage participation of the prospective anchor tenants in the project.” Although LSGI continued to discuss with Neiman Marcus the possibility of having a store in its development project, the district court found that the letters had a detrimental effect on LSGI’s ability to secure the prospective anchor tenants.

Less than a month after the mayor wrote to the prospective anchor tenants in an attempt to persuade them not to commit to the LSGI project, the City sent a letter to appellants and other owners of property that would be taken for the LSGI project. The letter informed them that the City had decided to “go forward” with the LSGI project, and, as an “initial step” in the process, the City would appraise their properties “which would be acquired if the development takes place.” The letter, dated November 23, 1987, also noted “You should understand that by appraising the property the City is not making a definite commitment to acquire the same. Nor does it establish your eligibility for any relocation benefits or assistance you may be entitled to receive if your property is acquired.” The City never informed appellants that there was a possibility that their properties would not be taken between the time this letter was sent and the commencement of LSGI’s suit against the City, even after negotiations between the City and LSGI irreconcilably broke down, despite the fact that appellants made repeated calls and sent letters to city officials and staff questioning the status of the LSGI project and the acquisition of their properties. The district court found that the November 23, 1987 letters and the subsequent events led appellants to reasonably believe that the LSGI project was going forward and, by indicating that the properties were to be appraised, that the properties would be taken.

On December 3, 1987, LSGI presented a second project design to the City, which the mayor vetoed. In January 1988, the City issued a public notice of default by LSGI based on LSGI’s failure to secure anchor tenants for the project. LSGI submitted a third design proposal on March 17, 1988. The City approved the design and later overrode the mayor’s veto of the project. However, the City later informed LSGI that in order to obtain sufficient support for the project, several changes would have to be made. These changes required LSGI to substantially modify the existing design plan. During this negotiation period between the City and LSGI, appellants continued to experience severe difficulty in retaining current tenants and attracting new tenants because of the possibility that their properties would be condemned.

On May 17,1989, the City terminated all negotiations with LSGI and, shortly thereafter, the City recommended the transfer of $29 million from funds allocated for the LSGI project to a project on north Nicollet Mall that would include a Neiman Marcus store. On June 1, 1989, the City terminated the development contract and post-closing agreement with LSGI. The City did not inform appellants and other affected property owners that their properties would not be condemned for development.

LSGI sued the City in federal district court for specific performance of the development contract and post-closing agreement and filed a notice of lis pendens against all of the properties in the development district, including appellants’ properties. LSGI prevailed at trial, but the Eighth Circuit Court of Appeals reversed, finding that the City did not breach its contracts with LSGI because the contracts gave the City the right to approve the final design project. La Societe Generate Im-mobiliere v. Minneapolis Cmty. Dev. Agency, 44 F.3d 629, 636-38 (8th Cir.1994). Although the City was ultimately successful in the LSGI action, the district court in this case found that the litigation nonetheless adversely affected appellants. The court found that the notice of lis pendens made appellants’ properties unmarketable and the City was responsible for this loss in marketability because it never sought to have the notice of lis pendens removed until 1993 in a post-trial motion, which the federal district court granted.

Appellants sued the City in state court alleging that the City’s actions constituted a taking under the federal and state constitutions. The district court dismissed the claims on the pleadings, but the court of appeals reversed and remanded for trial. Siegel v. Minneapolis Cmty. Dev. Agency, 1996 WL 229242 at *2 (Minn.App. May 7, 1996). Following trial, the district court concluded that appellants were entitled to compensation under the federal and state constitutions. The district court and the advisory jury found that the City had: (1) identified a specific geographic footprint that included appellants’ properties; (2) in honoring the commitment to confidentiality, refused to provide information about the project to property owners; (3) not clearly communicated to appellants that acquisition of their properties might not occur and that they should maintain their properties to avoid loss of value in case their properties were not acquired; and (4) not informed appellants that the City had terminated the contract and negotiations with LSGI. From its findings, the district court concluded that: (1) the City’s activities in connection with the LSGI project created a “cloud of condemnation” over the properties from at least November 23, 1987 until the LSGI suit was resolved in February 1995; (2) the City’s actions significantly reduced the fair market value of appellants’ properties and caused a loss of rental income, thereby causing a substantial and adverse economic impact on the properties and rendering appellants’ businesses commercially impracticable; (3) the City uniquely burdened appellants by impairing their existing and prospective uses of the properties for an unreasonable period of time; and (4) the City interfered with appellants investment-backed expectations by disturbing their longstanding and existing uses of the properties. The district court also concluded that the City had abused its eminent domain power and acted in bad faith with respect to appellants. The district court awarded appellants $4,348,000 in damages plus interest, costs, expenses and attorney fees.

The court of appeals reversed. The court held that the City’s actions did not constitute a taking because the City never “significantly controlled” appellants’ properties. Johnson v. City of Minneapolis, 649 N.W.2d 873, 886 (Minn.App.2002). The court reasoned that in the absence of significant control over the property, “the government’s actions, even if they adversely affect the property, do not implicate constitutional protections.” Id. at 882. We granted appellants’ petition for further review and now must decide whether respondents’ actions related to its redevelopment plans for Nicollet Mall and the subsequent litigation between the City and LSGI, which caused a diminishment in rental income and value of appellants’ properties for several years, constituted a taking for the purposes of the constitutional requirement of compensation.

1. Federal Constitution

The parties agree that because respondents never took physical possession or control of appellants’ properties, appellants’ inverse condemnation claim under the federal constitution is in the nature of a claim for compensation for a regulatory taking rather than for a physical taking of property and that Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978), applies in reviewing appellants’ claims under the federal constitution.

Accordingly, and assuming that the law governing regulatory takings applies, the analysis used to determine whether a landowner is entitled to compensation for a regulatory taking under the United States Constitution depends on the effect of the regulation. If the regulation has the effect of permanently denying a property owner “all economically beneficial uses” of his property, the government is categorically required to pay compensation. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 330, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002) (quoting Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1019, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992)). Anything less than a complete taking of property requires the balancing test set forth in Penn Central. Tahoe-Sierra, 535 U.S. at 331, 122 S.Ct. 1465. This test requires the court to consider: (1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the government regulation. Penn Central, 438 U.S. at 124, 98 S.Ct. 2646. “In deciding whether a particular governmental action has effected a taking, this Court focuses * * * on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole.” Id. at 130-31, 98 S.Ct. 2646.

Here, the record indicates that the value of appellants’ properties was diminished but not completely eliminated. Therefore, the 3-prong Penn Central analysis controls the question of whether appellants are entitled to compensation under the federal constitution. Rather than apply the three Penn Central factors, the court of appeals applied a “significant control” test and concluded that because respondents never exercised “significant control” over the properties, appellants were not entitled to compensation under the Takings Clause. See Johnson, 649 N.W.2d at 884.

While it appears from case law that “significant control” over the property by the government plays a role in the Penn Central analysis, the court of appeals erred in applying a “significant control” test rather than the Penn Central analysis to determine whether a compensable regulatory taking occurred under the federal constitution.

Having concluded that the court of appeals applied an improper standard, we generally would either proceed to apply the correct standard or remand to the court of appeals for application of the proper standard. However, we decline to address the merits of appellants’ taking claim under the United States Constitution or remand to the court of appeals for application of Penn Central because, as discussed below, we conclude that even if appellants’ takings claim under the United States Constitution fails under Penn Central, appellants are entitled to compensation under the Minnesota Constitution.

2. Minnesota Constitution

The Minnesota Constitution requires the state to pay just compensation when the taking of private property occurs: “Private property shall not be taken, destroyed or damaged for public use without just compensation.” Minn. Const, art. I, § 13. A taking “include[s] every interference, under the right of eminent domain, with the possession, enjoyment, or value of private property.” Minn.Stat. § 117.025, subd. 2 (2002). These constitutional and statutory provisions have been construed to mean that “the clear intent of Minnesota law is to fully compensate its citizens for losses related to property rights incurred because of state actions.” State by Humphrey v. Strom, 493 N.W.2d 554, 558 (Minn.1992). The fact that no physical invasion of appellants’ property occurred does not bar compensation under the damages provision of the state constitution. Wegner v. Milwaukee Mut. Ins. Co., 479 N.W.2d 38, 40 (Minn.1991); see also Johnson v. City of Plymouth, 263 N.W.2d 603, 605 (Minn.1978) (“To be constitutionally compensable, the taking or damage need not occur in a strictly physical sense and can arise out of any interference by the state with the ownership, possession, enjoyment, or value of private property.”).

While the general rule is that economic loss caused by “normal activities in connection with an urban renewal project, without more, does not constitute a de facto taking in a constitutional sense,” an abuse of the power of eminent domain may be tantamount to a regulatory control, constituting a de facto taking “when that abuse is specifically directed against a particular parcel.” Orfield v. Housing and Redev. Auth. of St Paul, 305 Minn. 336, 341-42, 232 N.W.2d 923, 927 (1975).

In Orfield, we affirmed the district court’s decision that the property owner did not suffer compensable damage to his property as a result of a proposed redevelopment project that affected property owned by the plaintiff. Id. at 342, 232 N.W.2d at 927. Our decision was based on the findings of the district court — which we concluded were supported by the record — that the city never represented to the plaintiff that his property would be acquired, that the city advised the plaintiff “at all times” that his property was not scheduled for acquisition, and that the city and its agents “did not act in bad faith in its dealings with [the plaintiff] respecting the subject property.” Id. at 340-41, 232 N.W.2d at 926-27.

This case is factually distinguishable from Orfield. Here appellants, although informed that the City’s decision to appraise their properties for purposes of condemnation did not necessarily mean that their properties would be taken for redevelopment, were not informed that the City was not obligated to proceed with the development under the agreement with LSGI, were not apprised of the status of the development project, and were not informed when the LSGI project was effectively abandoned. From these findings, the district court concluded that the City misled the appellants “by their words, actions, and inactions * * * leading [appellants] to believe that the acquisition was going forward.” Additionally, contrary to the district court’s findings in Orfield, in this case, the district court found that the City “specifically targeted [appellants’] Properties [sic] for acquisition.” See Orfield, 305 Minn, at 342, 232 N.W.2d at 927 (“It may well be that abuse of the power of eminent domain when that abuse is specifically directed against a particular parcel could constitute a de facto taking.”). Finally, Orfield is also distinguishable on the grounds that here the district court concluded that the City had acted in bad faith with respect to appellants by failing to use their best efforts and by failing to cooperate with LSGI in meeting required deadlines.

We conclude that the cumulative effect of the City’s actions with respect to the LSGI development, which the district court concluded substantially interfered with appellants’ property rights, constituted an abuse of the City’s condemnation authority and that appellants are therefore entitled to compensation under Orfield. See Wegner v. Milwaukee Mut. Ins. Co., 479 N.W.2d 38, 42 (Minn.1991) (“Once a ‘taking’ is found, compensation is required by operation of law.”). While each action taken by the City, analyzed separately, could be viewed as normal condemnation activity, the cumulative effect of the actions rendered appellants’ properties unmarketable for years while the development was being negotiated and, later, in litigation. Because of the unique circumstances of this case, we find no basis for reversing the district court’s findings and conclusions of law that the City specifically targeted appellants’ properties and acted in bad faith and conclude that this case presents a narrow and rare instance in which precondemnation activity constituted a taking under the Minnesota Constitution.

By our decision today, we do not adopt a sweeping rule that property owners are entitled to compensation for any diminishment in value or loss of income caused by the prospect that their property will be condemned at some future date. Rather, our decision is limited to the particular facts presented.

Reversed.

PAGE and HANSON, JJ., took no part in the consideration or decision of this case.

      . Inverse condemnation is "a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency.” Alevizos v. Metropolitan Airports Comm’n of Minneapolis and St. Paul. 298 Minn. 471, 477, 216 N.W.2d 651, 657 (1974) (quoting Thornburg v. Port of Portland, 233 Or. 178, 376 P.2d 100, 101 (1962)).

      . In 1991, after LSGI filed suit, appellant Goldman wrote to the mayor seeking relief from the financial hardship caused by the vacancies in his building. The mayor responded:
      It is unfortunate that your investments in the Nicollet Arcade Building and the Essex Building are not rewarding to you. The City of Minneapolis would like these buildings to be productive rather than demolished or boarded up, but we cannot buy them with no plans for development.
      The [MCDA] buys property when there is a developer for it. At this time there is not a developer interested in your two properties that we know of.

      . LSGI won a court-reduced award of $17,280,000.

      . According to the district court, the jury's determination that the losses sustained by the Siegel/Goldman appellants amounted to $2,348,000 and the losses sustained by appellant Johnson amounted to $2,000,000 was more than amply supported by the evidence presented at trial. The sufficiency of the evidence in support of the damages award is not at issue in this appeal.


source: Caselaw Access Project

author: MEYER, Justice. GILBERT, Justice HANSON, Justice

license: Public Domain

text:
    BILLY GRAHAM EVANGELISTIC ASSOCIATION, Respondent, v. CITY OF MINNEAPOLIS, Petitioner, Appellant.
    No. C1-01-2127.
    Supreme Court of Minnesota.
    Aug. 14, 2003.

      Jay M. Heffern, City Attorney, Carol E. Lansing, Assistant City Attorney, Minneapolis, MN, for Appellant.
    Richard D. Snyder, Fredrikson & Byron, PA, Minneapolis, MN, for Respondent.
   OPINION

MEYER, Justice.

In this case we decide whether the City of Minneapolis (the City) acted unreasonably, arbitrarily, or capriciously in designating an area near downtown Minneapolis as an historic preservation district. Respondent, Billy Graham Evangelistic Association (BGEA), owns four buildings in the designated district. By writ of certiorari, BGEA challenged the City’s designation and the court of appeals granted relief to BGEA. The City appeals.

Minnesota Statutes § 471.193 announces a state policy that the “historical, architectural, archaeological, engineering, and cultural heritage of this state is among its most important assets.” Minn.Stat. § 471.193, subd. 1 (2002). In order to promote the conservation of historic properties, the legislature granted local governments the power to establish commissions to designate districts or buildings of historic significance and to preserve those assets. Id., subds. 2, 3.

The City exercised the authority granted by the legislature and formed the Heritage Preservation Commission of the City of Minneapolis (HPC) under chapter 599 of the City code. Minneapolis, Minn., Code of Ordinances (Code) ch. 599 (2001). The commission is made up of ten members, chosen for their knowledge and expertise in the field of historic preservation. See Code § 599.120(c) (2001). The commission considers seven criteria in determining whether a property is worthy of designation as a landmark or historic district. See Code § 599.210 (2001). Those criteria include the property’s association with significant events or periods, significant people, the City’s identity, a particular architectural or engineering style, or a unique landscape design. Id.

In November of 1999, a neighborhood group, the Citizens for a Loring Park Community, asked the HPC to study whether an area on and around Harmon Place, from Loring Park to 11th Street South, merited a designation as historic. The citizens’ group liked the mini-downtown feel of the area, with its eclectic group of businesses in one- to four-story buildings and pedestrian-friendly streets. In 2000, the HPC asked the City planning department to commission a study of the area for possible historic designation. The planning department contracted with Carole Zellie of Landscape Research to conduct the designation study. Zellie presented her report to the planning department in April of 2001. She concluded that an area comprising ten city blocks (see map appended to this opinion) merited historic designation for its role in the City’s historic automotive industry and met criteria 1 and 4 of the Code. The Zellie report concluded that the area could be designated for protection because of its past association as the hub of the automotive sales district in Minneapolis at the beginning of the 20th century.

The Zellie report explained that “the automobile dealership evolved into a prominent and very specialized building type” and that the Harmon Place area showed “some of the best efforts of local architects.” Various architectural styles for these buildings were “all arranged around the important display windows.” Zellie concluded that:

Harmon Place was synonymous with the Minneapolis automotive industry for fifty years, from the birth of the local and national industry to its dispersal to the suburbs. Twenty-two automotive buildings from the dozens which once lined Hennepin Avenue and Harmon Place survive in the ten-block [area]. Most of the contributing buddings still embody a good sense of an important era in the city’s growth, and illustrate a chapter of its transportation, economic, and social history.

Having determined that the area met two of the criteria for designation, Zellie analyzed each of the individual buildings in the area. Of the 42 buildings comprising the proposed District, Zellie found 26 were “contributing,” i.e., met criteria 1 and/or 4 of the ordinance, and 22 of those 26 fit the additional unifying characteristics Zellie identified: buildings constructed between 1907-1930 with some relation to the automobile industry. The remaining 16 properties were designated as “noncontributing.”

After Zellie’s study recommended historic designation for the Harmon Place Historic District (the District), the proposed designation began working its way through the approval process required by city ordinance. See Code §§ 599.200-.300 (2001). First, the HPC forwarded the Zellie report to the state historic preservation officer, who concurred that the District was eligible for preservation under criteria 1 and 4. Then the City Planning Department sent a letter to property owners in the District, informing them that a consultant had recommended historic designation, that they could access the report, and there would be a public hearing likely held in August of 2001. The City Planning Commission adopted the findings of the planning department and approved the designation on August 6, 2001. The proposed designation included five buildings owned by BGEA at that time: buildings 11,12,13, 25, and 27 (see map).

Meanwhile, in July 2001, the HPC denied a request from the University of St. Thomas to demolish five buildings that St. Thomas owned within the proposed District. St. Thomas appealed to the city council, which, on August 10, 2001, granted permission for the demolition of the requested buildings, including four buildings designated as contributing properties.

Before the first public hearing on the District’s historic designation, BGEA hired Charlene Roise, of Hess, Roise and Company, to conduct an independent study of the proposed District. Roise concluded that the Fawkes block, at the westernmost end of the proposed District, bordered by Hennepin Avenue, Harmon Place, and Maple Street, fit the criteria for designation as an historic district. She disagreed with the designation of the remainder of the nine blocks, however. She recommended the City designate the Fawkes block as a district, and then individually designate buildings numbered 4, 5, 10, and 14 as historic (none of which were owned by BGEA). Alternatively, Roise suggested the City divide the large proposed District into two subdistricts: the Fawkes block being the first; the second capturing a group of buildings in the area bounded by the alley that runs between Hennepin Avenue and Harmon Place, Yale Place, 11th Street, and Spruce Place. Her proposed alternative boundaries would still have captured two of BGEA’s buildings (those numbered 11 and 12) in the historic district.

Apparently in response to Roise’s report, the planning department revised the proposed District to exclude (1) the large “superblock” containing the Minneapolis Community College, the Minneapolis Area Vocational Technical Institute, and the H. Alden Smith house (buildings 15, 16, and 17), because the buildings did not contribute to the proposed District; (2) the frontage along Hennepin Avenue, because the character of the buildings did not reflect the character of the District and the only-contributing properties had been extensively remodeled; and (3) all of the property owned by the University of St. Thomas. The effect of the planning department’s revision was to split the District into two portions: the Fawkes block and a northeast portion.

The HPC held a public hearing on September 25, 2001, and in response to the significant interest in the designation, the HPC scheduled a second public hearing on October 16, 2001. At both meetings, there was significant opposition to the area’s historic designation by local property owners. The owners complained that they had not had enough input in the process, that the designation would decrease their buildings’ value, that the auto industry was not significant enough in the history of Minneapolis, and that the buildings had already been altered too much to merit designation. Additionally, Roise and Marjorie Pearson (also a consultant for BGEA) spoke on behalf of BGEA and urged limiting the historic designation to the Fawkes block and four individual buildings in the northeast portion.

Residents of the neighborhood spoke in favor of the designation at the public hearings, mentioning that they wanted to save the character of the area, its historic value, and the pedestrian-friendly nature of the District. City Council Member Lisa Goodman opined: “[Tjhis is about preserving one of the last, very unique architectural areas in the city.” At the October 16 HPC meeting a motion to approve the two sub-districts was amended to include five properties facing Hennepin Avenue (buildings numbered 21-25). The commissioners discussed why the HPC staff had recommended excluding them, and reasons for keeping them in the District. Finally, the HPC approved the designation of the two subdistricts, with the inclusion of the five buildings facing Hennepin Avenue. The HPC did not make written findings to support its inclusion of the Hennepin Avenue properties.

On October 31, the City’s Zoning and Planning Committee (Zoning) heard public testimony and then adopted the findings of the planning department, requested findings to support the inclusion of the Henne-pin Avenue properties, and approved the designation. Zoning then passed the recommendation on to the city council for final approval, together with findings that the inclusion of the Hennepin Avenue properties helped to preserve the integrity of the contributing properties and the character of the District. On November 9, 2001, the city council passed two resolutions, designating the southwest portion (Fawkes block) and the northeast portion (which included respondent BGEA’s four properties) as the Harmon Place Historic District.

On a writ of certiorari to the court of appeals, BGEA challenged the designation of the northeast portion of the District, claiming that the City acted arbitrarily, capriciously, or unreasonably. The court of appeals agreed with some of BGEA’s claims as to how the City’s action was arbitrary, and did not address the remainder. The court focused on three aspects of the designation that it characterized as arbitrary: the inclusion of the properties facing Hennepin Avenue, the fact that only that portion of building 13 facing Harmon Place is included within the District, and the inconsistent use of an alley as a boundary. Billy Graham Evangelistic Ass’n v. City of Minneapolis, 653 N.W.2d 638, 644-46 (Minn.App.2002). The court reversed the City’s designation of the northeast portion of the District, finding it to be arbitrary and capricious. Id. at 646.

The City claims the court of appeals misstated the record and substantially departed from the usual course of justice in its standard of review of quasi-judicial decisions. BGEA reasserts the two broad claims it made to the court of appeals. First, BGEA argues that the City erred as a matter of law in interpreting the heritage preservation ordinance to permit inclusion of noncontributing properties in an historic district. Second, BGEA contends that the City’s designation of the District was arbitrary or capricious in various substantive and procedural ways. We review the City’s designation of historic property independently from the court of appeals. See Swanson v. City of Bloomington, 421 N.W.2d 307, 311 (1988); Northwestern College v. City of Arden Hills, 281 N.W.2d 865, 868 (Minn.1979). In our independent review of the City’s action, we will focus on BGEA’s arguments as to how the City’s action was unreasonable, arbitrary, or capricious.

I.

We begin with BGEA’s argument that the City erred as a matter of law in interpreting the heritage preservation ordinance to permit inclusion of noncontributing properties in a district. We interpret an existing city ordinance de novo. Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn.1980).

The Code defines an historic district as “[ajll property within a defined area designated as an historic district by the city council because of the historical, cultural, architectural, archaeological or engineering significance of the district, or designated as an historic district by state law.” Code § 599.110 (2001) (emphasis added). The ordinance says the seven different “criteria shall be considered in determining whether a property is worthy of designation” and defines property as “[ajny land, building, structure or object, surface or subsurface area, natural or landscape feature.” Code §§ 599.210, 599.110 (2001) (emphasis added). BGEA interprets the word property to mean a singular structure, i.e., one building or parcel; and argues that each singular property must possess the required historical, cultural, or architectural significance. We do not read the ordinance so narrowly. The ordinance permits any building, structure, surface area, or landscape feature to be included in an historic district. The ordinance does not limit properties to those with historical significance. We conclude that the plain language of the ordinance allows for the inclusion of noncontributing properties within an historic district and the City did not err as a matter of law in permitting inclusion of some noncontributing properties in the District.

II.

We turn to the central question in this case, whether the City acted arbitrarily or capriciously in designating the northeast portion of the District. Recently we ruled that cities are engaged in quasi-judicial action when they designate buildings for heritage preservation. Handicraft Block Ltd. Partnership v. City of Minneapolis, 611 N.W.2d 16, 24 (Minn.2000). Because they are quasi-judicial acts, we affirm decisions to designate property as historic unless we make an independent determination that the decisions are unreasonable, arbitrary, or capricious. See Horn v. City of Coon Rapids, 313 N.W.2d 409, 416-17 (Minn.1981).

As we explained in Zylka, which party bears the burden of proof will depend on whether the City stated reasons for its decision — if the City gave contemporaneous reasons, BGEA bears the burden of proof, and if not, the City must prove it did not act unreasonably, arbitrarily, or capriciously. Zylka v. City of Crystal, 283 Minn. 192, 198-99, 167 N.W.2d 45, 50-51 (1969). In this case, the City did make contemporaneous findings to support its decision. Various levels of city government made formal, written findings concerning the District. The final written findings came from Zoning, which made findings of fact after its October 30 meeting. Looking at the record as a whole, including hearing transcripts and written memoranda, the City made its reasoning clear and public as to the District. Therefore, BGEA bears the burden of proving that the City acted arbitrarily, capriciously, or unreasonably in designating the District as historic.

BGEA asserts that the City’s designation of the District’s boundaries was arbitrary or capricious because specific properties were treated arbitrarily, expert testimony was arbitrarily dismissed, the City did not comply with its own ordinance, and the City treated BGEA differently than the University of St. Thomas. We review the City’s actions to determine whether they comport with the ordinance’s criteria for historic designation. See Honn, 313 N.W.2d at 417 (noting that the arbitrariness inquiry in quasi-judicial actions focuses on whether the government action is in accord with the local ordinance). We note that the City’s designation criteria require the City to exercise its judgment about whether an historical event or place is “significant” or associated with distinctive elements of city “identity” and other such subjective criteria.

Specific Properties

BGEA argues that the City gave no reason for including certain noncontributing properties in the District, while other noncontributing properties were excluded; that apartment buildings and surface parking lots should not have been included in the District; that the inclusion of only the part of building 13 facing Harmon Place was indicative of arbitrariness; and that no reasons were given to support the inclusion of the properties facing Hennepin Avenue.

Based upon our independent review of the record in this case, we cannot conclude that the City acted unreasonably, arbitrarily, or capriciously in designating properties to be included in the District. The City gave contemporaneous rationale to support the inclusion and exclusion of all the properties that BGEA contests. The findings issued by Zoning detail the reasons for including the properties facing Hennepin Avenue, designating the block including building 13, and retaining certain noncontributing properties in the District. The Zellie report supports the District’s overall historic value and its comportment with the criteria in the ordinance. All necessary levels of city and state agencies approved the designation of this area as historic. The full District encompasses 31 buildings, the majority of which (23) an expert has deemed are contributing to the historic character of the area. Even the disputed northeast portion of the District has a reasonable number of contributing buildings (15 out of 20).

Some of BGEA’s complaints stem from changes in the District’s boundaries that were made by the City as the proposed historic designation made its way through various levels of city government. After receiving critiques of its larger, original proposed District, the City acted to ameliorate the economic effects of the designation on local property owners by splitting the District into two sections, whose combined area was significantly smaller than the original proposal. Downsizing the District and redrawing its boundaries was a rational response to the issues raised by property owners. In addition, it was rational for the City to include the areas with the highest concentration of contributing buildings (especially the buildings facing Harmon Place, the heart of the District) and to attempt to achieve recognizable boundaries for the historic District. We are concerned about the sufficiency of the reasons given for the inclusion in the District of only the part of building 13 facing Harmon Place and the Hennepin Avenue properties, given the somewhat marginal historic value of the northeast portion of the District. Nevertheless, evaluating the City’s determinations in the light of an ordinance with subjective and broadly-defined criteria for designation, we cannot conclude that the City’s decision-making was not rational. Therefore, we conclude that the City’s decision to include or exclude certain properties within the District was supported by legally sufficient reasons and was not unreasonable, arbitrary, or capricious.

Expert Evidence

Next, BGEA criticizes the City’s treatment of experts in the hearing process. It asserts that the City ignored Roise’s opinions and that the City’s failure to rebut Roise’s report is evidence of an arbitrary decision. BGEA refers specifically to Roise’s opinion that apartment buildings should not be included in the District, that vacant lots destroyed the cohesion of the District, and that many of the contributing buildings had undergone significant changes.

The court of appeals also expressed concern that the HPC acted against the recommendation of an expert, referring not to Roise but to the planning department staff. The appellate panel stated that “no reason was offered to reject the staff member’s recommendation that the buildings facing Hennepin Avenue be excluded from the [District].” Billy Graham, 653 N.W.2d at 645. The court of appeals cited the rejection of the staff recommendation to exclude the properties facing Hennepin Avenue as a signal of an arbitrary act.

We recently touched upon the issue of experts in Schwardt v. County of Watonwan, 656 N.W.2d 383 (Minn.2003), and noted that local decisionmakers have discretion in weighing evidence. Id. at 388. Upon review, courts should not attempt to weigh the credibility of conflicting experts, but instead review the record to ensure that the decision was “legally sufficient,” i.e., had support in the record. See Barton Contracting Co. v. City of Afton, 268 N.W.2d 712, 718 (Minn.1978) (“The standard for assessing conflicting evidence * * * [in quasi-judicial cases, is] not to weigh the evidence, but to review the record to determine whether there was legal evidence to support the zoning authority’s decision.”). Cf BECA of Alexandria, LLP v. County of Douglas, 607 N.W.2d 459, 463 (Minn.App.2000); BBY Investors v. City of Maplewood, 467 N.W.2d 631, 635 (Minn.App.1991).

In this case the record shows that the City accepted all expert evidence that was proffered and took the experts’ opinions into consideration, in addition to the opinion of its staff. The experts gave conflicting testimony about the inclusion of various properties. For example, Zellie had included the Hennepin Avenue properties in her single district proposal while Roise had excluded them. Despite BGEA’s contention that the HPC did not consider Roise’s testimony, the record indicates that the planning department altered its recommendation for the District’s boundaries in response to Roise’s alternative proposal. Following Roise’s lead, the planning department recommended the alley between Harmon Place and Hennepin Avenue as a boundary, excluded a significant number of noncontributing buildings, and carved out two smaller subdistricts. With the recommendations of Roise, Zellie, and the planning department in hand, the commissioners voiced their reasons for drawing the District’s final boundaries. We conclude that the City acted appropriately in accepting and considering all expert testimony before reaching its decision, and there are sufficient facts in the record to support the City’s decision.

HPC’s Obligation Under the City Ordinance

BGEA alleges that procedural irregularities are evidence that the City aet-ed arbitrarily. Primarily, BGEA asserts the HPC failed to make findings sufficient to satisfy its obligation under the city ordinance. BGEA argues that all findings should have come from the HPC, instead of from Zoning. Because some findings originated with Zoning, BGEA asserts the entire designation should fail for arbitrariness.

The HPC is required to make findings under Code § 599.280 (2001). The HPC adopted some of the findings of the planning department, but did not add findings to justify including the Hennepin Avenue properties. Instead, Zoning developed findings to support the inclusion of the Hennepin Avenue properties. Thus, all findings did not originate with the HPC. We do not think the remedy for that failure, however, should be a judicial reversal of an historic designation that was approved by all levels of city government. There is no evidence that HPC’s failure to make findings prejudiced BGEA It was clear at the public meeting of the HPC on October 16 that the commission had voted to add the Hennepin Avenue properties back into the District; BGEA had notice of the HPC’s recommendation to Zoning. Indeed, a lawyer from BGEA spoke at the Zoning meeting on October 80. There is nothing more BGEA could have done to voice its opinion, even if the HPC had included specific findings about the Henne-pin Avenue buildings’ historic merit. Therefore, we conclude that the findings were sufficiently contemporaneous and adequate to support designating the entire northeast portion of the District.

The University of St. Thomas

BGEA alleges they were situated similarly to another property owner, the University of St. Thomas (St. Thomas), whose properties within the originally proposed District were approved for demolition. BGEA notes that four of St. Thomas’s buildings that were described as “contributing” in the Zellie report are now demolished, while the four BGEA buildings, three of which were “contributing,” are still standing and part of the District. BGEA asserts that St. Thomas received vastly different treatment at the hands of the City than did BGEA, with no rationale for doing so in the record, a practice that is prohibited by our holdings in Northwestern College, 281 N.W.2d at 869, and Hay v. Township of Grow, 296 Minn. 1, 7-8, 206 N.W.2d 19, 23-24 (1973).

We have held in multiple cases that “[a] zoning ordinance must operate uniformly on those similarly situated.” Northwestern College, 281 N.W.2d at 869; accord Hay, 296 Minn, at 7-8, 206 N.W.2d at 24. Disparate treatment of two similarly-situated property owners may be an indication that the local government is acting unreasonably or arbitrarily. See Northwestern College, 281 N.W.2d at 868-69.

In Northwestern College, two Christian colleges had applied for permits to expand their facilities. Id. at 867. The Arden Hills City Council denied Northwestern College’s permit application, alleging that a college was incompatible with an area zoned for residential use. Two months earlier, however, the council had approved a permit for Bethel College, which was also a college building in an area zoned for residential use. We determined there was no reason to treat the two colleges differently, and reversed the denial of Northwestern College’s permit application as arbitrary and a violation of due process. Id. at 869.

We do not agree that BGEA and St. Thomas were similarly-situated property owners who received disparate treatment. There were more similarities between Northwestern College and Bethel College than there are between BGEA and St. Thomas. In Northwestern, both applicants were Christian colleges, in the same type of zoned area, applying for very similar types of permits, and the city council approved one and denied the other within a span of two months. St. Thomas and BGEA are both nonprofit entities that owned contributing properties within the large district that Zellie originally proposed, but the similarities end there. BGEA chose to challenge the designation of the District in the first instance, which the City determines using the criteria in Code § 599.210. St. Thomas did not challenge the inclusion of its property within the District, but instead requested a “certificate of appropriateness” from the HPC, which the City determines using criteria in Code § 599.350(b) (2001). The standards involved in deciding the two questions are divergent and make these property owners dissimilar in the type of relief sought. Because the appropriateness of demolition considers factors other than the contributing status of the property, these properties were not similarly situated.

In addition to the City reviewing BGEA’s and St. Thomas’s requests using different criteria, the properties of BGEA and St. Thomas were situated differently within the Harmon Place area. St. Thomas’s buddings were concentrated on a block in which a very small area was taken up by contributing buildings, while BGEA’s buildings, especially 11 and 12, were in the heart of the northeast subdis-trict. We conclude that the City did not act arbitrarily in treating BGEA’s and St. Thomas’s buildings differently.

We conclude that the City of Minneapolis did not act arbitrarily or capriciously in designating the contested northeast portion of the District as historic. Under a higher standard of review we might reach a different result, given the somewhat marginal historic value of this area. Our decision is constrained by the significant deference that we accord the quasi-judicial actions of local governments and the broad and subjective criteria for historic designation set out in the ordinance. Because the historic designation meets the criteria in the ordinance, the City made findings in favor of its decision, and the City’s findings are supported by the record, we conclude the designation of the Harmon Place Historic District is neither unreasonable, arbitrary, nor capricious.

Reversed.

BLATZ, C.J., took no part in the consideration or decision of this case.

APPENDIX

GILBERT, Justice

(concurring in part, dissenting in part).

I concur that a historical district can include some noncontributing properties and that the standard of review is arbitrary and capricious. However, I respectfully dissent from the majority’s holding that the City did not act arbitrarily or capriciously in this case and would affirm the court of appeals.

This designation procedure hinges on a report (Zellie Report) prepared by the City’s commissioned consultant, Carole Zellie (consultant). This consultant studied a section on the southern edge of downtown Minneapolis, where the City’s automotive industry flourished from around the turn of the century to the 1950s. The consultant ultimately recommended that the area be designated a historic district. However, the Zellie Report contains a significant flaw — it ignores the historical and physical change that has occurred in this district since the late 1950s when the auto industry vacated this area. While the Zellie Report concedes that the auto industry era began in 1907 and ended in 1957 with “its dispersal to the suburbs,” the report represents a nostalgic summary of a bygone era and is written as if there had been no change in this area since the 1950s. The Zellie Report carries forward the history of this bygone era without taking into consideration the end of the era and the transformation of the district by the time it was being considered for historical designation.

The current configuration of this district doesn’t even come close to resembling “the hub of the automotive sales district in Minneapolis at the beginning of the 20th Century.” Redevelopment began with the I-94 freeway construction in 1965. Many of the auto-related buildings in this area have also been demolished and replaced by twelve surface parking lots. There are at least seven new buildings within the district, four apartment buildings and three buildings that haven’t been substantially remodeled. The automotive industry was eventually replaced by major educational and religious institutions and multiple housing.

The most significant change in the district came in the “super block” area, which clearly divided the automotive industries’ concentration into two distinct areas. The super block area contains major new structures that now cater to higher education and cover over two square blocks. It houses what is now known as the Minneapolis Community and Technical College. Notwithstanding the complete changeover in this two-block area, the consultant recommended that these buildings be included in this historical district. Wisely, the City planning department rejected this part of their expert’s recommendation and excluded this super block from historical designation. As a result, the planning department revision split the district into two portions commonly known as the Fawkes block and the northeast portion. It is the northeast portion of the district, which is the subject of this appeal.

Considerable changes have taken place in the northeast section of the district since the late 1950s. For instance, substantial religious institutions emerged in this area. In 1914, across the street from this designated area, the Basilica of St. Mary’s Church was constructed. At the north end is the First Baptist Church. Then, the Northwestern Bible and Training School was developed here in the 1940s and 1950s. Subsequently, the Billy Graham Association purchased and occupied five buildings in the district beginning in 1950 (buildings 11, 12, 13, 25 and 27). Finally, to complete this cycle, the University of St. Thomas (St. Thomas) campus acquired large portions of the historically designated district and was permitted to demolish five buildings in this area and expanded the downtown campus. This activity began in 2001 and continued through the final historical designation process.

In 1971, the City of Minneapolis zoned the northeast portion high density, multiple residential housing and established the Loring Park Redevelopment District. Thirty-six of the 42 buildings in this area were razed. They were replaced by the Loring Greenway developed in 1976, 43 Greenway Gables town homes in 1980, and the Laurel Village developed in 1986. Four older apartment buildings (buildings 6, 36, 37 and 39) are also part of the northeast section. At the time the consultant issued the Zellie Report there was also one hotel in the northeast section (building 26).

If the City had commenced this historical designation back in 1971, at or about the time the historical district designation was first authorized by the legislature, it might be a different situation. See Act of April 22, 1971, ch. 128, 1971 Minn. Laws 253, 253-54 (codified at Minn.Stat. § 471.193 (1974)). However, after all of this redevelopment activity, only twelve buildings in the northeast portion of this historical district can legitimately be classified as auto industry related (buildings 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 23 and 36). Although buildings 2, 25 and 37 were designated as contributing, that characterization is inaccurate. Buildings 2 and 39 were demolished by St. Thomas, building 25 underwent extensive renovations, and building 37 is an apartment building. The remaining twelve contributing properties represent less than 30 percent of the surface area of those initially recommended in the northeastern section of the historical district, two of which are apartment complexes (buildings 6 and 36).

As pointed out by a unanimous panel of the court of appeals, the City’s planning commission essentially redrew the boundaries that were recommended by the paid consultant and by the City planning department staff. See Billy Graham Evangelistic Assoc. v. City of Minneapolis, 653 N.W.2d 638, 645 (Minn.App.2002). It is in redrawing these boundaries that the City acted in an arbitrary and capricious manner. First, the inclusion of the Hennepin Avenue properties, buildings 21 though 25, within the district is arbitrary and capricious. The City included the Hennepin Avenue properties within the district despite the planning department’s recommendation to exclude the properties because “[t]his portion of Hennepin Avenue frontage possesses a different character and development potential than the remainder of the district.” See Minneapolis, Minnesota, Code of Ordinances (Code) § 599.280 (2001) (“In making its findings and recommendation, the commission shall consider * * * the city planning commission’s comments”). Moreover, when the Heritage Preservation Commission of the City of Minneapolis (HPC) decided to include the Hennepin Avenue properties within the district, it failed to make fold-ings explaining its decision to ignore the planning department’s recommendation and redraw the boundaries. See Code § 599.280 (“[following the public hearing, [HPC] shall make findings with respect to the proposed designation”). Failing to follow procedural guidelines is an indicator that the City acted in an arbitrary manner. See Amcon Corp. v. City of Eagan, 348 N.W.2d 66, 75 (Minn.1984) (“The city’s own comprehensive plan and map designate the property at issue as roadside business. While this designation is not binding, a refusal to zone accordingly is evidence that the city is acting in an arbitrary manner.”). While the zoning and planning committee (zoning) ultimately made written findings justifying the inclusion of the Hennepin Avenue properties, these findings were largely conclusory. Zoning found that two of the five properties are classified as contributing properties and “[including the properties within the historic district will help to preserve the integrity of these buildings and the character of the district.” Such conclusory findings mitigate against a finding that the City acted in a reasonable manner. See Historic Green Springs, Inc. v. Bergland, 497 F.Supp. 839, 850-51 (E.D.Va.1980) (stating that conclusory findings provide minimal insight into whether a decision is arbitrary or capricious).

The arbitrary nature of the decision to include the Hennepin Avenue properties within the district is further illustrated by the fact that the Zellie Report designated only two of the five Hennepin Avenue buildings as contributing. Additionally, both of these “contributing” buildings have lost much of their historical value as they have “undergone varying degrees of alteration, including modernization of windows, redesign of building entrances or blocking of original window openings.” The majority admits that the northeast portion has a “somewhat marginal historic value.” Thus, this “combination of danger signals” — ignoring its own committee’s recommendation, lack of findings and marginal historical value suggest that the City acted arbitrarily when it included the Hen-nepin Avenue properties in the district. See Cable Communications Bd. v. Nor-West Cable Communications P’ship, 356 N.W.2d 658, 669 (Minn.1984) (“The court will intervene, however, where there is a ‘combination of danger signals which suggest the agency has not taken a “hard look” at the salient problems’ and the decision lacks ‘articulated standards and reflective findings.’ ”) (quoting Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 825 (Minn.1977)) (internal citations omitted).

Another indicator that the City acted arbitrarily and capriciously in designating the district historic is that the City bisected building 13 so that it is partially within and partially without the designated district, even though both parts of the building are designated noncontributing. Discussing building 13, the majority concludes that “[w]e are concerned about the sufficiency of the reasons given for the inclusion in the District of only the part of building 13 facing Harmon Place * * * given the somewhat marginal historic value of the northeast portion of the District.” Nevertheless, the majority determines that the City’s bisection of building 13 was rational.

The commission failed to make findings as to why it bisected building 13, or why this decision is rational. The only finding with respect to building 13 was made by the City planning committee that stated buildings 2, 4, 6, 8,10,12, and 13 should be included in the district because all “but one” contribute to the district. However, none of the various government agencies articulated any findings with respect to why building 13, which is located at the end of the row and is noncontributing, was included in this group. Additionally, there are not any findings relating to why building 13 was bisected when the entire building is noncontributing. Where an entire building has been designated noncontributing, to designate only one part of the building historic is per se arbitrary, where the City failed to make any findings to justify its decision. Cf. Amcon Corp. v. City of Eagan, 348 N.W.2d 66, 75 (Minn.1984) (holding that “[t]he failure of the city to advance any rationale for not following its comprehensive plan and not granting RB classification is strong evidence of arbitrary action”).

The inclusion of building 13 in the historic district at all is inexplicable considering that the building was constructed in 1980 and in light of the City’s decision to exclude from the district buildings 15 and 17, which are also newly constructed, nonconforming buildings. Accordingly, the City excluded two new properties from the district and included a portion of one new property in the district without articulating a basis in the record to explain why these buildings should be treated in a different manner. Importantly, none of these buildings were associated with the automobile industry in any manner. There is no basis to support this disparate treatment.

The City also acted arbitrarily when during the designation process it allowed St. Thomas to demolish four contributing properties that were originally in the northeast portion (buildings 2, 39, 41 and 42), and then removed the entire parcel owned by St. Thomas from the district. In allowing St. Thomas to demolish buildings, the City treated similarly situated properties differently. As BGEA points out, “[t]he City freed St. Thomas from the restrictions of historic designation but imposed those restrictions [on BGEA].” It is well established that “[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). The majority concludes that BGEA and St. Thomas are not similar because St. Thomas requested a “certificate of appropriateness” instead of challenging the designation of the district. Thus, the majority concludes that “[t]he standards involved in deciding the two questions are divergent and make these property owners dissimilar in the type of relief sought.” However, BGEA and St. Thomas are actually quite similar. They are both nonprofit entities that owned contributing properties within the large district originally proposed by the Zellie Report. Allowing the contributing buildings owned by St. Thomas to be demolished while including similar noncontributing buildings owned by BGEA within the district is per se disparate treatment. Thus, based on this record, the City did act in an arbitrary and capricious manner in treating similarly situated properties differently by allowing the demolition of contributing properties while including noncontributing property.

Finally, although I agree that some noncontributing property can be included within a historical district, those properties should not predominate over contributing properties. Further, noncontributing properties should only be included when they add value or support the architecture of the district. Building 13 adds nothing to the historic or architectural significance of this district. It is a special use, single-user-type of building that has now been stripped of its value and may even be rendered unusable. This arbitrary and capricious action of the City should not be condoned by this court nor should we give our approval to this unbounded exercise of significant governmental power just short of a “taking” in an eminent domain context. The “constrainft]” and “deference” the majority accords the City in this appeal amounts to an abdication of our judicial power. The majority’s decision rubber stamps a defective, disparate and improper use of governmental power. If this action by the City is not arbitrary and capricious, what is? We must draw the line somewhere. In doing so, we are not substituting “our own judgment about the historic value of the District” as the majority opinion states, but rather exercising our independent legal judgment to ensure that another branch of government conducts its business according to the law, rather than according to its whim or wishes.

HANSON, Justice

(concurring in part, dissenting in part).

I join in the concurrence and dissent of Justice Gilbert.

      . The criteria considered when designating a property as an historic district are:
      (1) The property is associated with significant events or with periods that exemplify broad patterns of cultural, political, economic or social history.
      (2) The property is associated with the lives of significant persons or groups.
      (3) The property contains or is associated with distinctive elements of city identity.
      (4) The property embodies the distinctive characteristics of an architectural or engineering type or style, or method of construction.
      (5) The property exemplifies a landscape design or development pattern distinguished by innovation, rarity, uniqueness or quality of design or detail.
      (6) The property exemplifies works of master builders, engineers, designers, artists, craftsmen or architects.
      (7) The property has yielded, or may be likely to yield, information important in prehistory or history.
      Code § 599.210 (2001).

      . See supra note 1.

      . Sections 599.200-.300 of the City Code outline the process for designation. Code §§ 599.200-.300 (2001). First, the property must be nominated by one of a select group of people; then the HPC may direct the planning director to study the property. Code §§ 599.220-.230. The planning director shall submit all proposed sites to the state historic preservation officer for review and comment. Code § 599.250. Next the City Planning Commission shall review the designation and there must be public hearings with proper notice. Code §§ 599.260-.270. After the public hearings, the commission makes findings and submits them to the zoning and planning committee of the city council, which reviews the recommendation and then submits the question to the city council, which has the final decision. Code §§ 599.280-.290.

      . St. Thomas owned buildings 1, 2, 3, 39, 40, 41, and 42, but the HPC only denied the demolition of buildings 2, 39, 40, 41, and 42.

      . The Alden Smith house did not contribute to this District because it was built before 1907, but it was already designated individually as a landmark property.

      . BGEA argues, in the alternative, that the ordinance is unconstitutionally vague. BGEA did not argue this issue to the court of appeals, and in its memorandum opposing the City’s petition for review it asserted that "no constitutional issues * * * are at stake." Therefore, we decline to consider the argument. See Putz v. Putz, 645 N.W.2d 343, 350 (Minn.2002) ("Generally issues not raised below will not be considered on appeal.’’); see also Minn. R. Civ.App. P. 117, subd. 3 (stating that petitions for review shall contain a "statement of the legal issues sought to be reviewed”).

      . BGEA makes two other procedural arguments. The first is that the City did not make sufficient findings to stave off a presumption of arbitrariness, which we address above. BGEA’s other argument is that it did not receive "meaningful notice” of the public hearings. Its argument lacks support in the record. The HPC complied with the notice provision of the ordinance, Code § 599.170 (2001) (mandating notice of the hearing be mailed at least ten days beforehand to all property owners within 350 feet of the district boundaiy). BGEA has cited no case law, ordinance, or statute indicating that the City’s failure to provide notice in addition to that required by ordinance is evidence of an arbi-traiy designation, nor does it raise a constitutional claim that it was denied procedural due process.

      . The ordinance reads: "Following the public hearing, the [HPC] shall make findings with respect to the proposed designation and shall submit the same together with its recommendation to the zoning and planning committee of the city council.” Code § 599.280 (2001). The language suggests that oral reasons given at the hearing are not sufficient, but more formal, written findings must be submitted to Zoning.

      . See supra note 1.

      . After the HPC proposed designation of the Harmon Place area, all buildings were subject to interim protection. Under interim protection, HPC shall make findings that the destruction is necessary to correct an unsafe or dangerous condition on the property, or that there are no reasonable alternatives to the destruction. In determining whether reasonable alternatives exist, the commission shall consider, but not be limited to, the significance of the property, the integrity of the property and the economic value or usefulness of the existing structure, including its current use, costs of renovation and feasible alternative uses. The commission [HPC] may delay a final decision for a reasonable period of time to allow parties interested in preserving the property a reasonable opportunity to act to protect it.
      Code § 599.350(b) (2001).

      . While it is tempting to substitute our own judgment about the historic value of the District as the dissent does, the arbitrary and capricious standard of review prohibits us from engaging in that assessment.

      . In 1977, the Minneapolis Technical College was completed at 1415 Harmon. In 1977, the Minneapolis Community College was completed at 1501 Hennepin Avenue. In 1979, the Metropolitan Junior College became the Minneapolis Community College. Furthermore, both the Irene Hixon Whitney Fine Art Center (1989) and the Phillip Helland Center (1986) were opened in this area.

      . In splitting this district, the City left the Fawkes block intact. This block had not undergone the same extensive demolition and renovation that has occurred in the balance of the proposed district. In fact, of the original eleven properties in the Fawkes' section, eight of these were designated as contributing properties (buildings 19, 20, 28, 30, 32, 33, 34 and 35). Building number 18 was deemed to be noncontributing because it had been extensively renovated after its original construction in 1946. Building 29 was also deemed to be noncontributing because it was a hotel constructed in 1900 and number 31 was deemed to be noncontributing because it was constructed in 1947, even though it was an addition to building 32, which was indeed part of the Fawkes Auto Company salesroom and garage.

      . It appears the Zellie Report included the apartment buildings as contributing properties solely because they had been built between 1907 and 1930 and had "co-existed with the automotive district.”

      . Building 26 is outside of the final boundaries established by the City.


author: WILLIS, Judge.

text:
    STATE of Minnesota, Appellant, v. Nikia Kylene BALENGER, Respondent.
    No. C8-02-2152.
    Court of Appeals of Minnesota.
    Aug. 4, 2003.

      Mike Hatch, Attorney General, St. Paul, and Jay M. Heffern, Minneapolis City Attorney, Michelle M. Jacobson, Assistant City Attorney, Minneapolis, for appellant.
    Phillip S. Resnick, Resnick & Associates, PLLP, Minneapolis, for respondent.
    Considered and decided by WILLIS, Presiding Judge, HUSPENI, Judge, and FORSBERG, Judge.*

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

WILLIS, Judge.

After receiving a tip that respondent Nikia Balenger had just pointed a gun at another person, police approached Balen-ger and seized her by grabbing the back of her jersey and forcing her to stop. During the seizure, a gun fell from Balenger’s person. The state charged Balenger with carrying a weapon without a permit, in violation of MinmStat. § 624.714, subd. 1(a) (2000). On appeal from an order suppressing evidence of the gun and dismissing the complaint, the state argues that the district court erred in concluding that the police exceeded the scope of a legitimate investigative stop by grabbing Balen-ger’s jersey. Because we conclude that the court erred, we reverse and remand for further proceedings.

FACTS

At 1:20 a.m. on September 2, 2002, Minneapolis Police Officer Jeffrey Peterson was assisting with crowd control at the intersection of Fifth Street and Hennepin Avenue, when a female tapped him on the shoulder and told him that a person wearing a hat and an L.A. Lakers jersey had just pointed a gun at her friend. The tipster pointed at respondent Nikia Balen-ger and identified her as the person who had pointed the gun. The tipster then left the area before Officer Peterson had a chance to ask her any questions about her identity.

Officer Peterson reported the tip to his partner and began walking toward Balen-ger while radioing the information he had received to other officers in the area. Officer Peterson testified that as he approached Balenger, he saw her hands tucked under her jersey by her waist and that, based on his training and experience, he suspected that Balenger was hiding a gun.

In the meantime, Officer Scott Taylor, who had received Officer Peterson’s call, saw Balenger walking across the street and began following her. He testified that (1) he could not see Balenger’s hands but noticed that she was carrying a purse; (2) he called several times for Balenger to stop, saying, “Ma’am, stop,” but Balenger continued walking briskly toward a crowded pizza restaurant; (3) the last time he commanded Balenger to stop he was within one or two feet of her; (4) concerned that Balenger posed a risk both to the public and to himself, he grabbed the back of her jersey and pulled her back just before she reached the restaurant’s front door; (5) as he did so, he heard the sound of metal hitting the ground and saw a gun at Balenger’s feet; and (6) there were no other people directly in front of the restaurant when he grabbed Balenger. Officer Peterson, who had seen the gun come “flying out,” testified that he ran to secure it while his partner handcuffed Balenger. The officers determined that the gun was loaded and arrested Balenger.

The state charged Balenger with carrying a weapon without a permit, in violation of Minn.Stat. § 624.714, subd. 1(a) (2000). Balenger moved to suppress evidence of the gun, challenging the constitutionality of the stop. The court granted Balenger’s motion and dismissed the complaint, ruling that although the tip was sufficiently reliable to justify an investigative stop and even a frisk, once Officer Taylor grabbed Balenger’s. jersey, he exceeded the scope of an investigative stop and “seized” Bal-enger without probable cause. By concluding that probable cause was necessary to justify Officer Taylor’s conduct, the district court appears to have used the term “seizure” to mean “arrest.”

The court noted on the record at the hearing that although the anonymous tip contained sufficient indicia of reliability to justify an investigative stop, the officers observed no independent criminal activity or furtive glances to justify “seizing” Bal-enger. The court discredited Officer Taylor’s testimony that Balenger’s hand was tucked under her jersey, giving him reason to believe that she was concealing something. The court also found that Balenger might not have heard Officer Taylor’s command to stop. In its written order, the court specifically found that Officer Taylor’s testimony that he asked Balenger to stop was not credible because Officer Taylor was confused about the location of the pizza restaurant and stated that there were no other people in front of the restaurant when he stopped Balenger.

This appeal follows the court’s order suppressing the gun and dismissing the complaint.

ISSUES

I. Did Officer Taylor have a reasonable suspicion of criminal activity sufficient to justify an investigative stop of Balenger?

II. Did Officer Taylor transform an otherwise legitimate investigative stop into an arrest by grabbing the back of Balen-ger’s jersey and forcing her to stop?

ANALYSIS

When reviewing pretrial orders on motions to suppress evidence, this court independently reviews the facts to determine, as a matter of law, whether the district court erred by suppressing, or not suppressing, the evidence. State v. Harris, 590 N.W.2d 90, 98 (Minn.1999).

The Fourth Amendment protects “the right of the people to be secure * * * against unreasonable searches and seizures.” U.S. Const, amend. IV; see also Minn. Const, art. I, § 10 (guaranteeing the right of people to be secure against unreasonable searches and seizures). A seizure occurs when, under the totality of the circumstances, a reasonable person would conclude that he or she is not free to leave. In re Welfare of E.D.J., 502 N.W.2d 779, 783 (Minn.1998) (rejecting, in the exercise of its independent authority to interpret the state constitution, the U.S. Supreme Court’s determination that a seizure occurs only when police use physical force to restrain a person or when a person physically submits to show of authority by police, and holding that juvenile was seized when police asked him to stop).

The state concedes that Officer Taylor seized Balenger when he grabbed the back of her jersey and forced her to stop, but it argues that the seizure was reasonable. Whether such a seizure, known as an investigative or Terry stop, is reasonable depends on (1) whether the stop was justified “at its inception” and (2) whether the actions of the police were reasonably related in scope to the circumstances that justified the stop in the first place. Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968).

I.

The district court concluded that the anonymous tip in this case was sufficiently reliable to justify the stop. Balen-ger argues, however, that the tip was insufficiently reliable because it was based on uncorroborated information provided by an anonymous tipster. We disagree.

An investigative stop is justified when the police can point to specific and articulable facts that, together with rational inferences drawn from those facts, create reasonable suspicion of criminal activity. Terry, 392 U.S. at 21, 88 S.Ct. at 1880. The suspicion must exist at the inception of the stop. Olson v. Comm’r of Pub. Safety, 371 N.W.2d 552, 556 (Minn.1985) (stating that “fourth amendment protection applies at the time the police intrusion is undertaken and is not to be judged by what the police learn after the intrusion”).

Ordinarily, uncorroborated anonymous tips provided by private citizens are sufficient to justify an investigative stop because the reliability of the tipster may be presumed. Marben v. State, Dep’t of Pub. Safety, 294 N.W.2d 697, 699 (Minn.1980) (concluding that CB radio communication from unidentified trucker was sufficient to support investigative stop of car, even though trooper saw nothing improper in operation of car, because trucker was private citizen and his reliability could be presumed); State v. Siegfried, 274 N.W.2d 113, 115 (Minn.1978) (concluding that first-time citizen informer’s credibility is generally presumed); see also State v. Lindquist, 295 Minn. 398, 400, 205 N.W.2d 333, 335 (1973) (considering fact that tipster was first-time private citizen informer not involved in the criminal event himself in assessing reliability of tip).

Similarly, uncorroborated anonymous tips provided to police face to face are sufficiently reliable to justify an investigative stop, because the tipster puts himself in a position where his identity might be traced, and he might be held accountable for providing any false information. State v. Davis, 393 N.W.2d 179, 181 (Minn.1986) (holding that tip provided by female passenger who leaned out of car window and, motioning to only car in view, shouted that car had just run red light was sufficiently reliable to justify investigative stop, even though officer did not see any improper driving before stopping suspect car); see also United States v. Lloyd, 36 F.3d 761, 763 (8th Cir.1994) (holding that anonymous tip that several men were holding guns and drugs in lower level of nearby apartment complex was sufficiently reliable to justify further investigation where “witness spoke directly to the officers who were in a position to evaluate the credibility of the information provided”).

Some federal courts have concluded that officers receiving an anonymous tip that a person is armed are almost invariably justified in conducting an investigative stop. See, e.g., United States v. De-Berry, 76 F.3d 884, 886 (7th Cir.1996) (stating that “as a realistic matter [a tip that a person is armed] will require a stop in all cases”). But see United States v. McLeroy, 584 F.2d 746, 748 (5th Cir.1978) (holding stop unreasonable where tip indicated that defendant might be in possession of sawed-off shotgun). The element of imminent danger distinguishes a tip that a person is armed from one involving, for example, the possession of drugs. See United States v. Clipper, 973 F.2d 944, 951 (D.C.Cir.1992) (stating that when guns are involved, an attempt to wait out the suspect might have fatal consequences). To stop a person suspected of being armed, officers “need not be absolutely certain that [an] individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry, 392 U.S. at 27, 88 S.Ct. at 1883.

The anonymous tip in this case was provided face to face to police by a private citizen and was, therefore, sufficiently reliable to justify an investigative stop. See Davis, 393 N.W.2d at 181; Marben, 294 N.W.2d at 699. Officer Taylor did not have to be certain that Balenger was armed because the circumstances warranted his belief that his safety and the safety of others was threatened. The district court correctly concluded that the anonymous tip justified a stop of Balenger.

II.

The state argues that because the intrusion on Balenger’s Fourth Amendment rights was both minimal and justified by a “compelling public interest” in gun control, the district court erred in concluding that Officer Taylor transformed an otherwise legitimate investigative stop into an unlawful arrest by grabbing the back of Balenger’s jersey.

To be reasonable under the Fourth Amendment, an investigative stop must be limited in scope and duration to its initial justification. Terry, 392 U.S. at 19-20, 88 S.Ct. at 1879. In determining the propriety of a stop’s scope and duration, courts must balance the nature and degree of the intrusion on an individual’s Fourth Amendment rights against the governmental interest in crime prevention and legitimate concerns about the safety of law-enforcement officers. See Washington v. Lambert, 98 F.3d 1181, 1185 (9th Cir.1996). The courts must also consider the totality of the circumstances and judge the facts against an objective standard, namely, whether the facts available to the officer at the moment of the stop would cause a person of reasonable caution to believe that the action taken was appropriate. United States v. Tilmon, 19 F.3d 1221, 1224 (7th Cir.1994).

There is no bright-line test separating a legitimate investigative stop from an unlawful arrest. See Graham v. Connor, 490 U.S. 386, 396-97, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989) (stating that police officers faced with fluid situations are permitted to graduate their responses to the demands of the particular circumstances confronting them). Instead, “common sense and ordinary human experience must govern over rigid criteria.” United States v. Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985); see also United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981) (stating that process deals with probabilities rather than hard certainties). In determining whether a police officer’s conduct turned an investigative stop into an unlawful arrest, courts must specifically consider the aggressiveness of the police methods and the intrusiveness of the stop against the justification for the use of such tactics, i.e., whether the officer had a sufficient basis to fear for his or her safety. Lambert, 98 F.3d at 1185.

Unduly intrusive police conduct may, but does not automatically, transform an otherwise legitimate investigative stop into an unlawful arrest. See generally 4 Wayne R. LaFave, Search and Seizure § 9.2(d) (3d ed.1996). Indeed, the trend has been to “grant[ ] officers greater latitude in using force in order to ‘neutralize’ potentially dangerous suspects during an investigatory [stop].” United States v. Perdue, 8 F.3d 1455, 1464 (10th Cir.1993). Thus, the use of force reasonable under the circumstances will be permitted without a showing of probable cause when force is necessary for the protection of the investigating officers and the degree of force used is reasonable. See State v. Nading, 320 N.W.2d 82, 84 (Minn.1982) (holding that under totality of circumstances, fact that police ordered suspected burglars thought to be armed and dangerous to get out of car and he on the ground did not convert a temporary detention into an arrest); see also Perdue, 8 F.3d at 1462-63 (holding that police officers were justified in approaching suspects with their guns drawn, where suspects were reported to be armed and dangerous); United States v. Smith, 3 F.3d 1088, 1094-95 (7th Cir.1993) (holding that the handcuffing of suspect did not turn legal investigative stop into an arrest); Courson v. McMilli-an, 939 F.2d 1479, 1495-96 (11th Cir.1991) (holding that deputy sheriff did not transform investigative stop into arrest when he required suspect to lie on ground while he pointed shotgun at her and her companions, when suspects were uncooperative and did not respond to officer’s commands right away). And the use of reasonable force is almost invariably justified in cases involving persons suspected of being armed. See, e.g., Lloyd, 36 F.3d at 763 (holding that police were justified in brandishing their guns while investigating a tip that armed men had threatened an individual); Tilmon, 19 F.3d at 1227 (holding handcuffing reasonable where officers told by radio dispatch that suspect was armed and dangerous).

The district court concluded that by grabbing the back of Balenger’s jersey, Officer Taylor exceeded the scope of an otherwise lawful investigative stop. The court based its conclusion on its findings that (1) the officers observed no criminal activity or furtive glances; (2) Officer Taylor’s testimony that he commanded Balen-ger to stop was not credible; and (3) if Officer Taylor commanded Balenger to stop, she might very well not have heard it because the streets were crowded and it is unlikely that Balenger was the only person in front of the pizza restaurant.

Admittedly, both an officer’s personal observations of criminal behavior and a suspect’s refusal to stop when ordered to do so are important factors in determining whether the police exceeded the scope of an investigative stop. See United States v. Weaver, 8 F.3d 1240, 1244 (7th Cir.1993) (holding that tackling of suspect by police officers did not exceed bounds of permissible investigative stop where suspect took evasive action immediately upon encountering police, broke free and ran after officer grabbed his jacket, and ignored officer’s requests to stop); Tom v. Voida, 963 F.2d 952, 957-58 (7th Cir.1992) (stating that suspect cannot complain that police took forcible steps to detain him when suspect’s own evasive actions create the need for those steps). But when the use of force is otherwise reasonable in light of the totality of the circumstances, whether an officer observed criminal behavior or a suspect refused to stop is not determinative. In this case, the use of force was reasonable, even if, as the district court found, the officers observed no criminal behavior and either Officer Taylor did not command Balenger to stop or Bal-enger did not hear the command.

Based on the information Officer Peterson had provided him, Officer Taylor harbored an objectively reasonable belief that Balenger was armed and had committed a criminal offense by pointing a gun at someone, and he took reasonable steps to protect himself and others. The amount of force he used when grabbing Balenger’s jersey was minimal and was not more intrusive than necessary under the circumstances to effectuate the stop. Cf. Florida v. Royer, 460 U.S. 491, 504, 103 S.Ct. 1319, 1328, 75 L.Ed.2d 229 (1983) (holding that officers’ conduct was more intrusive than necessary to effectuate investigative detention where officers stopped person suspected of transporting drugs, seized his airline ticket and driver’s license, and asked him to accompany them to interrogation room adjacent to airport concourse); Gallegos v. City of Colorado Springs, 114 F.3d 1024, 1031-32 (10th Cir.1997) (holding that officers acted reasonably in response to perceived threat to their safety and did not escalate Terry stop into unlawful arrest by applying arm-bar maneuver and taking down 200-pound suspect after he crouched down and assumed wrestler’s position). In addition, grabbing Balenger’s jersey was the least intrusive means available to Officer Taylor reasonably to protect his safety and the safety of others. See Royer, 460 U.S. at 500, 103 S.Ct. at 1325-26 (stating that police should use the least intrusive means reasonably available to verify or dispel their suspicions in a short period of time). Even if Officer Taylor could have executed the stop through a less intrusive means, however, his actions were reasonable. See Cady v. Dombrowski 413 U.S. 433, 447, 93 S.Ct. 2523, 2531, 37 L.Ed.2d 706 (1973) (stating that fact that officers’ and public’s safety might be accomplished by less intrusive means does not, by itself, render search unreasonable).

Although grabbing an individual and forcing him or her to halt may elevate an investigative stop into an arrest in other scenarios, in this case it was reasonable as a means of neutralizing Balenger’s potential danger. The Fourth Amendment does not require that officers unnecessarily risk their lives when encountering a suspect they reasonably believe is armed and dangerous. Perdue, 8 F.3d at 1468. Nor does it “require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape.” State v. Cavegn, 294 N.W.2d 717, 721 (Minn.1980) (quotation omitted). On the contrary, “Terry recognizes that it may be the essence of good police work to adopt an intermediate response.” Id. (quotation omitted). Here, Officer Taylor did just that. He made a split-second judgment as Balenger was rapidly approaching the front door of a crowded restaurant and opted to grab her rather than allow her to walk into the restaurant with a gun. See Graham, 490 U.S. at 396-97, 109 S.Ct. at 1872 (stating that determination of reasonableness must take into account that “police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving”)-. This court will not engage in second-guessing. See Sharpe, 470 U.S. at 686, 105 S.Ct. at 1575 (stating that in assessing reasonableness of police’s conduct courts should “take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing”).

Because Officer Taylor harbored a reasonable suspicion that Balenger was armed, reasonably feared for his safety and the safety of the public at large, and used an amount of force that was proportionate to the initial justification for the stop, his actions were reasonable and did not transform an investigative stop into an unlawful arrest.

DECISION

The district court erred by granting Bal-enger’s motion to suppress and dismissing the complaint.

Reversed and remanded.

      . At oral argument, the state argued that Bal-enger waived consideration of whether the tip was sufficiently reliable to justify the stop by not filing a notice of review. But the supreme court has held that a respondent may raise alternative arguments on appeal to defend a decision or judgment, without filing a cross-appeal, provided that "there are sufficient facts in the record for the appellate court to consider the alternative theories, there is legal support for the arguments, and the alternative grounds would not expand the relief previously granted.” State v. Grunig, 660 N.W.2d 134, 137 (Minn.2003). Here, there are sufficient facts in the record for us to consider Balenger's alternative argument that the tip was not sufficiently reliable to justify the stop, there is legal support for the argument, and the argument would not expand the relief granted. Accordingly, the argument is properly before this court.