This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






The County of Hennepin, petitioner,


H. William Lurton, et al.,

James J. Johnson, et al.,


Filed December 5, 2000

Reversed and remanded

Crippen, Judge


Hennepin County District Court

File No. CD2485



Amy Klobuchar, Hennepin County Attorney, Lisa A. Berg, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for appellant)


Jerome V. Blatz, #191, 10800 Lyndale Avenue South, Bloomington, MN 55420 (for respondent Johnson)


            Considered and decided by Crippen, Presiding Judge, Halbrooks, Judge, and Holtan, Judge.*

U N P U B L I S H E D   O P I N I O N




            Taking Orono property in a condemnation proceeding, appellant Hennepin County contends that the property has no prospective value as six separate lots because an Orono zoning ordinance requires, among other things, that a residential lot be at least five acres in size.  As appellant contends, there is no evidence in the record to support the trial court determination that the property was exempt from the five-acre ordinance provision. Accordingly, we reverse and remand for a redetermination of whether the highest use of the parcel is as two lots conforming to the Orono ordinance.



            Respondents own Parcel 29, which is located in the City of Orono.  The parcel consists of a tract that was platted in 1972 as “Mark One,” which broke the parcel into six lots—in two blocks—and an outlot. In 1998, Hennepin County took a portion of Parcel 29 in a condemnation proceeding.

Respondents James and Sharon Johnson claim that the highest and best use of the property is as six developable residential lots.[1]  The county contends that this use conflicts with the requirements of the city ordinance that residential lots be at least five acres in size.  Orono, Minn., City Code § 10.27, subd. 5B (1984).

Respondents argue that the property is exempt from the size requirement of the relevant ordinance pursuant to a city ordinance providing that a “lot of record”[2] in the relevant area not meeting the size requirements of the zoning ordinance may be the site of a single-family dwelling if it is (a) at least one acre in size, with an average width of at least 100 feet, (b) either served by a public sanitary sewer or meets all public septic system requirements, and (c) meets the requirements of this or other applicable City Code provisions.  Orono, Minn., Ordinance 172 § 31.203 (Jan. 1, 1975). 

            Agreeing with respondents, the trial court determined that respondents’ property was developable into six residential lots.  The court observed that “[t]here is no dispute” that the six platted lots “do in fact meet” the requirements of section 31.203 of Ordinance 172. 



            The application of an ordinance to undisputed facts is a question of law for the court to decide.  Graham v. Itasca County Planning Comm’n, 601 N.W.2d 461, 467 (Minn. App. 1999).  This court reviews questions of law de novo.  Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn. 1989).

            The county argues that there is no evidence that the lots meet the second and third requirements of section 31.203 regarding sewer improvements and other ordinance requirements.  With respect to the sewer system requirement, the county contends that none of the six lots are served by a public sanitary sewer and that there is no evidence the lots meet all septic system requirements.  The county also contends that development of the lots would violate applicable setback requirements.

            The record contains nothing to suggest that the parties agree that the second and third requirements have been met in this case, and there is no evidence in the record permitting a judicial determination as to whether these requirements of section 31.203 have been met.  Respondents state to this court that “all the conditions of Section 31.203 have been met,” but they cite neither law nor fact to explain this conclusion.  Because there is nothing in the record to indicate whether the six lots in this case are exempted from the size requirement of the relevant zoning ordinance, the matter must be remanded for a determination of the issue by the trial court.  We express no opinion on the merits of the issue to be decided on remand.

            Appellant asserts an alternative basis for its proposition that the lots are not developable into six lots.  It is premature to explore this alternative until the district court has determined whether the lots meet the three requirements of section 31.203.

            Respondents argue that even if the lots do not meet the three requirements of section 31.203, respondents are entitled to relief from the requirements of the current zoning ordinances based on Minn. Stat. § 462.358, subd. 3c (1998).  This statute provides that a developer will not be required to submit a new application for subdivision approval if “substantial physical activity and investment has occurred in reasonable reliance on the approved application” and substantial financial damage will be suffered as a consequence of a requirement to submit a new application.  Henning v. Village of Prior Lake, 435 N.W.2d 627, 631 (Minn. App. 1989), review denied (Minn. Apr. 24, 1989).  Because there is no evidence that substantial physical activity and investment has occurred in reasonable reliance on the original plat, the record does not permit the conclusion that this statute governs the case; the only evidence of activity on the property shows the building of respondents’ primary residence, the installation of telephone hookups, and the grading of the driveway from time to time.

            Respondents also argue that even if the property does not meet the requirements of section 31.203, they have a vested right to develop the property.  See Interstate Power Co. v. Nobles Cty. Bd., 617 N.W.2d 566 (Minn. 2000) (discussing doctrines of vested rights and estoppel, to protect certain prior investments, citing, inter alia, Ridgewood Dev. Co. v. State, 294 N.W.2d 288, 294 (Minn. 1980)).  But to acquire such a vested right, there must be more than mere possession of a building permit, the incurring of some expense, the assumption of obligations preliminary to construction, the removal of trees, and grading of the land.  Id.  The record does not show sufficient progression to warrant application of the vested-rights theory in this case.

Reversed and remanded.


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

[1] The taking affected only the three lots in Block 1 of the Mark One plat.

[2] A “lot of record” is defined as “any lot for which a deed or registered land survey has been recorded in the office of the Register of Deeds or the Register of Titles for Hennepin County, Minnesota, prior to January 1, 1975, and after approval by the Council if required.”  Orono, Minn., City Code § 10.03, subd. 6 (1984).