This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-01-674

 

In Re:

Application for Building Permit

by LeisureTime Land Company.

 

Filed January 8, 2002

Affirmed
Klaphake, Judge

 

Morrison County District Court

File No. CX00875

 

Gary A. VanCleve, Mark D. Christopherson, Larkin, Hoffman, Daly & Lindgren, Ltd., 1500 Wells Fargo Plaza, 7900 Xerxes Avenue South, Bloomington, MN 55431 (for appellant LeisureTime Land Company)

 

Kenneth H. Bayliss, Quinlivan & Hughes, P.A., 400 South First Street, 600 Wells Fargo Center, St. Cloud, MN 56302-1008 (for respondent Morrison County)

 

Brian B. O’Neill, Karleen M. O’Connor, Faegre & Benson LLP, 2200 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402 (for intervenor Pine Bend Association, Inc.)

 

            Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Amundson, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Respondent Morrison County Board of Adjustments (the county) denied appellant LeisureTime Land Company’s application for a building permit because of an improper subdivision of property.  On appeal from the district court’s affirmance of the county’s denial of the permit, LeisureTime alleges that the county erroneously interpreted the ordinances governing platting and exceptions to the platting requirement.  Further, LeisureTime argues that the county’s moratorium on permits violated the rule of Interstate Power Co. v. Nobles Cty. Bd. of Comm’rs, 617 N.W.2d 566 (Minn. 2000).  Because we conclude that the county correctly interpreted the ordinances and that the moratorium was not applied on a retroactive basis, we affirm.

D E C I S I O N

I.

            Although issues of fact and legislative policymaking decisions should be left to the local authority’s determination, subject only to the “arbitrary and capricious” standard of review, the interpretation of an existing ordinance presents a question of law for the court.  Frank’s Nursery Sales, Inc., v. City of Roseville, 295 N.W.2d 604, 608 (Minn. 1980).  This court also undertakes independent review of an administrative interpretation of a zoning code.  See State by Minneapolis Park Lovers v. City of Minneapolis, 468 N.W.2d 566, 569 (Minn. App. 1991) (appellate court independently reviewed city council’s interpretation of zoning code to determine if conditional use permit had expired), review denied (Minn. July 24, 1991).  Therefore, we review de novo the issue of whether LeisureTime’s subdivision procedure violated the provisions of the county’s land use ordinance.

            Under Minnesota law, three rules of construction govern the interpretation of a zoning regulation: (1) terms should be construed according to their plain and ordinary meaning; (2) any ambiguity should be resolved against the governing body; and (3) the regulation should be considered in light of underlying policy goals.  Frank’s Nursery, 295 N.W.2d at 608-09.  By its stated terms, section 1501.1 of the county’s land use ordinance requires a platting process for 

the subdivision of a lot, tract, or parcel of land into three (3) or more lots, tracts, or other division of land for the purpose of sale or of building development, whether immediate or future, including the resubdivision or replatting of land or lots. 

Morrison County, Minn., Land Use Control Ordinance § 1501.1 (1995).  In furtherance of this process, section 1501.21 states that no subdivision may be recorded or a building permit issued until approved as provided in the ordinance.

            LeisureTime contends that section 1501.7 of the ordinance provides an alternative process for subdividing land with metes and bound descriptions.  Section 1501.7(b) provides that conveyances of parcels of land by metes and bounds shall be permitted

[f]or the division of any description of record in the Office of County Recorder into a maximum of three (3) tracts provided that:

            1. All tracts meet the current lot size requirements of this ordinance and no lot shall require a variance from one or more standards of this ordinance in order to use the lot for its intended purpose;

            2. No new public road is required to provide access to any parcel; and

            3. A certificate of survey is required on all new lots, tracts or parcels of land which are less than ten (10) acres in


size.  This certificate of survey must be filed in the office of the Morrison County Recorder. 

Id., § 1501.7(b) (1995).

            LeisureTime argues that because sections 1501.1 and 1501.7(b) are ambiguous when read together, the ordinance should be construed against the governing body to allow the subdivision.  But any possible ambiguity in the ordinances regarding the subdivision of land specifically into three lots is irrelevant here because the land was subdivided into nine lots.[1]  The language of section 1501.7(b) also provides further restrictions for the conveyance of metes-and-bounds property including lot size, access, and survey requirements. This specific language contravenes the less restrictive approach advocated by LeisureTime. 

This construction also comports with the underlying policy goals of the ordinance.  The land use control ordinance was adopted pursuant to Minn. Stat. §§ 394.21-.27 (2000), which conveys authority to local units of government to carry out planning and zoning activities.  The county promulgated the subdivision regulations of the ordinance “to provide for the orderly, economic and sound development of all land within the county located outside of the corporate limits of the cities therein * * *.”   Morrison County, Minn., Land Use Control Ordinance § 207.5 (1995).   To this end, the ordinance seeks to regulate land development in the public interest by requiring a platting process for subdividing tracts into more than three lots.  Allowing LeisureTime to circumvent this process by repeatedly subdividing a larger tract into smaller parcels would frustrate the intent of the county in enacting the subdivision regulations.   The county board did not err in its interpretation of the ordinance requirements.

II.

            A limited moratorium on development will be upheld unless it is determined that a zoning authority acted arbitrarily by adopting it.   See Almquist v. Town of Marshan, 308 Minn. 52, 54, 245 N.W.2d 819, 820-21 (1976)  (upholding limited moratorium on issuance of building permits to permit city to study long-range planning options).  If a moratorium is not found to be arbitrary or discriminatory, it may be upheld even though the proposed project is the only one affected by the moratorium.  See Duncanson v. Bd. of Supervisors of Danville Twp., 551 N.W.2d 248, 252 (Minn. App. 1996) (holding that good-faith effort of township to plan for orderly development defeated any objection that ordinance was directed at proposed feedlot), review denied (Minn. Sept. 20, 1996). 

By resolution dated April 14, 2000, the county petitioned the DNR to reclassify Round Lake as a natural environment lake.  The temporary moratorium on development within 1000 feet of the lake, which was noticed on April 23, 2000, and passed on May 9, 2000, was enacted in order to allow the DNR to consider its petition.  The moratorium was to be valid only until the DNR made a determination concerning reclassification of the lake, allowing the county to amend its land use ordinance as required by reclassification, but not longer than one year. 

LeisureTime argues that the county board improperly applied the temporary moratorium on development to deny its building permit on a retroactive basis, thus violating the rule established in Interstate Power Co., Inc. v. Nobles County Bd. of Comm’rs., 617 N.W.2d 566 (Minn. 2000).   In Interstate Power, the Minnesota Supreme Court held that a county board could not, when directed on remand to explain its rationale for imposing certain conditions on a conditional use permit, amend a zoning ordinance and deny the permit altogether on the basis of the newly enacted ordinance.  The court held that to apply the amended ordinance in those “particular circumstances” was so inequitable as to be arbitrary and capricious.  Id. at 575.  But the court declined to apply the principles of equitable estoppel or vested right, noting that “extensive obligations or expenses in reliance on a prior government position are necessary for zoning estoppel.”   Id. at 576 (citing Ridgewood Dev. Co. v. State,294 N.W. 2d 288, 292 (Minn. 1980)). 

            LeisureTime’s reliance on Interstate Power is misplaced.  In this case, the county did not attempt to amend an ordinance in order to rescind approval of a previously approved project.  On April 23, 2000, the county published notice of its intent to enact the moratorium; the notice stated that the moratorium would be considered on May 9, 2000.  LeisureTime thus had notice of the pending moratorium before it applied for its building permit on May 3, 2000.  Nor did LeisureTime incur extensive obligations or expenses based on a prior government position so as to establish a vested right to develop the property on a theory of zoning estoppel.  Rather, this moratorium is squarely within the ambit of Almquist, as a permissible action to facilitate the development of long-range planning options.  308 Minn. at 54, 245 N.W.2d at 820-21.  We conclude that the county did not act in an arbitrary or discriminatory manner in enacting the temporary moratorium.

            Affirmed.



[1] Nor are we persuaded by LeisureTime’s argument that the first three deeds must be considered severable from the complete transaction, when all of the deeds were filed at exactly the same time.