Opinion
A15-1613
06-06-2016
In Re: Appeal from a decision on September 11, 2014 by the St. Louis County, Minnesota, Board of Adjustment Granting Variance as requested by Shawn Webster
Eric S. Johnson, Robert R. Kanuit, Fryberger, Buchanan, Smith & Frederick, P.A., Duluth, Minnesota (for appellant Shawn Webster) Robin C. Merritt, Kimberly E. Brzezinski, Hanft Fride P.A., Duluth, Minnesota (for respondents Michael J. Miller and Barbara Gnabasik) Thomas G. Stanley, St. Louis County Attorney, Duluth, Minnesota (for respondent St. Louis County Board of Adjustment)
This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (2014). Reversed and remanded to the county board for its reconsideration of the variance application
Connolly, Judge
Dissenting, Johnson, Judge St. Louis County District Court
File No. 69DU-CV-14-2537 Eric S. Johnson, Robert R. Kanuit, Fryberger, Buchanan, Smith & Frederick, P.A., Duluth, Minnesota (for appellant Shawn Webster) Robin C. Merritt, Kimberly E. Brzezinski, Hanft Fride P.A., Duluth, Minnesota (for respondents Michael J. Miller and Barbara Gnabasik) Thomas G. Stanley, St. Louis County Attorney, Duluth, Minnesota (for respondent St. Louis County Board of Adjustment) Considered and decided by Reilly, Presiding Judge; Connolly, Judge; and Johnson, Judge.
UNPUBLISHED OPINION
CONNOLLY, Judge
Respondent county board of adjustment granted appellant landowner an after-the-fact setback variance for his garage. Respondent neighbors appealed the board's decision in district court. The district court granted summary judgment to respondent neighbors, ordering appellant to remove or relocate his garage. Appellant challenges that decision, arguing that the board properly exercised its discretion in granting a variance and that the district court abused its discretion in granting injunctive relief. We reverse the district court's decision but remand to the board of adjustment for its reconsideration of the variance application.
FACTS
In July 2013, appellant Shawn Webster applied to St. Louis County for a land use permit to build a garage on his homestead property. The land use permit was granted. The St. Louis County Planning Department (SLCPD) told appellant when the permit was granted that the required property line setback was 15 feet. Appellant's proposal showed a property line 15-foot setback from the south property line and a 30-foot setback from the east property line. Relying on the permit, appellant commenced construction of the garage on August 13, 2013. Early in the construction process, appellant decided to move the structure north and east to avoid destroying several mature white pines in the southeast corner of the property. Intending to have a 15-foot setback from the east property line, as instructed by county zoning officials, appellant moved the garage. Appellant incorrectly measured from the east property line, and the building was 13.5 feet from the east property line instead of 15 feet. The final location of the garage was 43 feet from the south property line and 13.5 feet from the east property line. Appellant also changed the garage design to include a 16-foot by 20-foot section that was not included in the original permit request.
On July 9, 2014, appellant's neighbors to the east, respondents Michael Miller and Barbara Gnabasik (the neighbors), filed a complaint with the zoning office that the garage was in violation of the required side-yard setback. Appellant ceased construction on the garage, with the garage slab complete and all the structural steel in place. By this time, appellant had already spent $60,000 in partially constructing the garage. County officials then informed appellant, for the first time, that the actual required side yard setback was 25 feet, not 15 feet. Because of this mistake and the county's recommendation, appellant applied for an after-the-fact variance from the 25-foot setback requirement. On August 11, 2014, appellant spoke with a member of the SLCPD concerning the status of his variance application. The SLCPD member advised appellant that the zoning staff was going to recommend that the board of adjustment (the board) grant the variance request. Appellant asked if he could restart construction and the SLCPD member said yes. On September 11, 2014, the board held a variance hearing. The board recommended that the after-the-fact variance request for an accessory structure at a reduced yard setback be approved as long as certain restrictions were observed. In so recommending, the board concluded:
1. The variance request is not in harmony with the general purpose and intent of official controls. This structure does not meet setback requirements and there was suitable area to meet setbacks.
2. Practical difficulty has not been demonstrated in complying with the official control. There are alternative locations for placing the structure on the parcel that would meet zoning requirements. However, there was confusion as to the required setback distance of 25 feet from property lines and the applicant received a land use permit for a side property line setback of 15 feet in July 2013. In addition, the applicant has spent a good deal of time and money [$60,000] on the structure.
3. A circumstance unique to the property is that a portion of the applicant's southern property line was adjusted and sold to the neighbor to the south. . . . The additional acreage to the south could have provided more room in which to meet the setback requirements where originally proposed. The adjusted southern property line runs at an angle. However, the east property line location has not changed.(Emphasis added). These conclusions were adopted verbatim and unanimously by the board of adjustment.
4. The variance will not alter the essential character of the locality. Accessory structures are an allowed use in a Multiple Use Non-Shoreland (MUNS) zone district. Due to the reduced east property line setback and slope that has been excavated, there may be potential stormwater or erosion issues. Negative erosion effects can be mitigated through conditions placed on the variance relating to stormwater and bank stabilization.
5. The construction was started in July [2013]. When the landowner discovered that the structure was not in compliance with the setbacks indicated on his original application, he stopped construction of the structure and applied for a variance. The applicant worked cooperatively with the county to seek resolution to this issue.
6. The county would not benefit by the enforcement of the ordinance if compliance were required because the applicant applied for and received a land use permit and has acted in good faith when it was found that the perceived 15 foot property line setback distances were not being met. It was not until the variance request was submitted that the required 25 foot setback was realized. The applicant believed they were varying by 1.5 feet when the variance is for 11.5 feet.
The neighbors appealed the decision of the board in district court, and the district court heard the parties' cross summary-judgment motions. The district court granted the neighbors' summary-judgment motion and overturned the board's variance approval. The district court also ordered that appellant remove or relocate the structure to a compliant location no later than December 1, 2015.
DECISION
"A board of adjustment has broad discretion to grant or deny variances, and we review the exercise of that discretion to determine whether it was reasonable." Kismet Investors, Inc. v. County of Benton, 617 N.W.2d 85, 90 (Minn. App. 2000), review denied (Minn. Nov. 15, 2000). "We examine the municipality's action to ascertain whether it was arbitrary and capricious . . . or whether the reasons given by the body were legally sufficient and had a factual basis." VanLandschoot v. City of Mendota Heights, 336 N.W.2d 503, 508 (Minn. 1983). In determining reasonableness, we are guided by the standards set out in the relevant county ordinance, but a board's authority to grant variances under the ordinance may not exceed the power granted by statute. Id. When proceedings before a board are fair and complete, appellate review is based on the record of the board's proceedings, not the district court's findings or conclusions. Swanson v. City of Bloomington, 421 N.W.2d 307, 313 (Minn. 1988).
Neither party alleges that the board of adjustment proceedings were not fair and complete.
The board of adjustment shall have the exclusive power to order the issuance of variances from the requirements of any official control including restrictions placed on nonconformities. Variances shall only be permitted when they are in harmony with the general purposes and intent of the official control and when the variances are consistent with the comprehensive plan. Variances may be granted when the applicant for the variance establishes that there are practical difficulties in complying with the official control. "Practical difficulties," as used in connection with the granting of a variance, means that the property owner proposes to use the
property in a reasonable manner not permitted by an official control; the plight of the landowner is due to circumstances unique to the property not created by the landowner; and the variance, if granted, will not alter the essential character of the locality. Economic considerations alone do not constitute practical difficulties.Minn. Stat. § 394.27, subd. 7 (2014).
Minn. Stat. § 394.27, subd. 7, was amended to its present version on May 5, 2011. 2011 Minn. Laws ch. 19 § 1 at 106. Because appellant's variance was granted after the amended statute took effect, we rely on the three statutory requirements for "practical difficulties" rather than on the six factors set out in In re Stadsvold, 754 N.W.2d 323, 331 (Minn. 2008) (predating the statutory amendment). There is a presumption that a legislative amendment of a statute shows an intent to change existing law. See Honeymead Prods. Co. v. Aetna Cas. & Sur. Co., 270 Minn. 147, 150, 132 N.W.2d 741, 743 (1965). --------
This statute requires that: (1) the property owner proposes to use the property in a reasonable manner not permitted by an official control; (2) the plight of the landowner is due to circumstances unique to the property not created by the landowner; and (3) the variance, if granted, will not alter the essential character of the locality. Id.
In granting the variance, the board of adjustment stated that "[t]he variance request is not in harmony with the general purpose and intent of official controls . . . . Practical difficulty has not been demonstrated in complying with the official control." Despite the requirement of Minn. Stat. § 394.27, subd. 7, that "[v]ariances shall only be permitted when they are in harmony with the general purposes and intent of the official control and when the variances are consistent with the comprehensive plan" and that "[v]ariances may be granted when the applicant for the variance establishes that there are practical difficulties in complying with the official control," the board granted the variance. Thus it appears that the first statutory factor may not have been met.
The board's statement that practical difficulty has not been demonstrated is followed by the statement that there are "alternative locations for placing the structure on the parcel that would meet zoning requirements"; however, "there was confusion as to the required setback distance of 25 feet from the property lines" and appellant "has spent a good deal of time and money on the structure." The board appears to have granted the variance based on appellant's "good faith" and cooperation with the county to seek resolution of the issue. While the board seems to find that the second statutory factor has been met, it does not explicitly say that the plight of the landowner is due to circumstances unique to the property not created by the landowner. See id.
Regarding the third factor, the board specifically states that "the variance will not alter the essential character of the locality." Thus, the third statutory factor has been met.
What most concerns us is that the board seemed to have adopted wholesale language from the staff recommendation dealing with practical difficulty and harmony, but then ultimately approved the variance. We are simply not sure, based on this record, what the board intended to do, because some of its findings conflict with its ultimate decision to grant the variance. Moreover, as to the three statutory factors dealing with practical difficulties, the first factor seems to oppose granting the variance, it is unclear whether the second factor was adequately analyzed, and the third factor seems to favor granting the variance.
We are typically reluctant to allow local boards an opportunity after the fact to substantiate or justify their earlier decisions. See, e.g., Metro 500, Inc. v. City of Brooklyn Park, 297 Minn. 294, 300, 211 N.W.2d 358, 362 (1973). However, where the board has failed to discharge its responsibilities in connection with the application, we are compelled to offer it the opportunity to do so and to develop a record to allow meaningful appellate review. See Earthburners, Inc. v. County of Carlton, 513 N.W.2d 460, 463 (Minn. 1994). "However, to prevent any unfairness to the applicant, the board must confine its inquiry to those issues raised in earlier proceedings before the [board] while allowing adequate opportunity for a meaningful discussion of those issues." Id. Because we conclude that some of the board's findings are inconsistent with its ultimate conclusion we reverse and remand for the board's reconsideration of appellant's application for a variance. See id. at 460. In the proceedings on remand, the board must articulate its ultimate decision, the reasons for its ultimate decision, with specific reference to the relevant provisions of statute and zoning ordinance and the three statutory factors dealing with practical difficulties. See id. at 463.
Appellant also argues that the district court abused its discretion in granting a permanent injunction ordering appellant to move the garage to a compliant location, because respondent failed to show that a legal remedy is inadequate and that the injunction is necessary to prevent great and irreparable injury. Because we reverse and remand to the board for reconsideration of appellant's permit application, we do not reach that issue here.
Reversed and remanded to the county board for its reconsideration of the variance application. JOHNSON, Judge (dissenting)
I respectfully dissent from the opinion of the court. The county board of adjustment made factual determinations that preclude it from granting a variance, and there is no basis for a remand for reconsideration.
A.
By statute, a county board of adjustment may not grant a variance unless, among other things, two prerequisites are satisfied: (1) the requested variance is "in harmony with the general purposes and intent of the official control" and (2) "there are practical difficulties in complying with the official control." Minn. Stat. § 394.27, subd. 7 (2014). In this case, the county board of adjustment's order states factual "conclusions" (which are in the nature of factual findings) that are incompatible with the granting of an area variance. The board wrote, "The variance request is not in harmony with the general purpose and intent of official controls . . . ." (Emphasis added) The board also wrote, "Practical difficulty has not been demonstrated in complying with the official control . . . ." (Emphasis added.) In light of its factual statements, the board's decision to grant Webster's variance application violates section 394.27, subdivision 7.
Webster does not argue that the board's factual statements are unsupported by the record. Rather, he essentially asks this court to examine the record, reweigh the evidence, and determine whether the evidence supports the board's ultimate decision to grant the variance application. It is indeed somewhat perplexing that the board made factual statements that are inconsistent with its ultimate decision to grant the variance application. But we must assume that the board intended to use the words it used. There is no contention that any part of the board's written decision contains a typographical error. The incongruity between the board's factual statements and its ultimate decision requires us to conclude that its ultimate decision is reversible error.
Even if I were inclined to ignore the board's factual statements and determine whether the record reveals practical difficulties, I would conclude that it does not. Webster's property is 4.62 acres in size. Webster's original application proposed a garage (with a home office) with a footprint of 1,840 square feet, which was to be located relatively close to the east lot line (30 feet away, which would nonetheless comply with the 25-foot setback requirement) but relatively distant from the west lot line (264 feet away), where a pre-existing driveway provides access to the property. After a permit was issued, Webster deviated from the original plans by building a larger structure with a footprint of 2,160 square feet and by relocating it even further to the east so that the foundation is only 13.5 feet from the east lot line but approximately 272 feet from the west lot line. Webster has not explained why he cannot use the relatively large amount of space between the current location and the west lot line. It is no surprise that the board stated that "[t]here are alternative locations for placing the structure on the parcel that would meet zoning requirements." In addition, the board's decision notes that Webster would be in compliance with all setback requirements if he were building a structure of the size and shape described in his original proposal, even after relocating it. For these reasons, the record does not support a finding that the practical-difficulties requirement is satisfied. See id.
Thus, the district court correctly determined that the county board of adjustment erred by granting Webster's variance application.
B.
There is no basis for a remand to the county board of adjustment for reconsideration of Webster's variance application. As an initial matter, Webster has not asked this court to remand the matter to the board. For that reason, respondents have not had an opportunity to present argument as to whether, if the district court erred, the matter should be reversed or should be reversed and remanded.
In any event, a remand is inconsistent with supreme court caselaw. If a local governmental body commits error in ruling on a zoning application, an appellate court generally reverses, without giving the local governmental body an opportunity to rule on the application a second time. See In re Livingood, 594 N.W.2d 889, 894-95 (Minn. 1999) (reversing county's denial of application for conditional use permit because insufficient evidence supported denial). The exceptions to the general rule are few and narrow. Id. at 895 (citing Earthburners, Inc. v. County of Carlton, 513 N.W.2d 460 (Minn. 1994), and White Bear Rod & Gun Club v. City of Hugo, 388 N.W.2d 739 (Minn. 1986)). A remand pursuant to Earthburners is appropriate only "in the rare case when . . . the record of a zoning decision is so inadequate that judicial review is impossible." Interstate Power Co. v. Nobles Cty. Bd. of Comm'rs, 617 N.W.2d 566, 577 (Minn. 2000).
The Earthburners exception to the general rule is inappropriate in this case. In Earthburners, the supreme court reversed and remanded a conditional-use-permit application because the county's proceedings were incomplete and because the county had failed to articulate reasons for its decision and to refer to the relevant provisions of the applicable law. 513 N.W.2d at 462-63. In In re Stadsvold, 754 N.W.2d 323 (Minn. 2008), the supreme court cited Earthburners in reversing and remanding because the county board of adjustment had erroneously applied an "adequate hardship" standard instead of the requisite "practical difficulties" standard. Id. at 331-33. In this case, however, there is no contention that the proceedings before the board were incomplete. See supra at 5 n.1. There is no contention that the board's written decision fails to articulate reasons for its decision. And there is no doubt that the board's decision applies the practical-difficulties standard. This appeal is not the "rare case" in which "the record of a zoning decision is so inadequate that judicial review is impossible." See Interstate Power Co., 617 N.W.2d at 577. Rather, this is a case in which the relevant facts were determined in such a way that the variance application must be denied.
In sum, I would affirm the well-reasoned decision of the district court, which reversed the decision of the county board of adjustment.