This opinion will be unpublished and

may not be cited except as provided by

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






Marlyn Buss,





Blue Earth County Board of Adjustment

and Suzette Johnson,



Filed June 18, 2002


Gordon W. Shumaker, Judge


Blue Earth County District Court

File No. C2001257



William S. Partridge, Kenneth R. White, Farrish Johnson Law Office, 201 North Broad Street, Suite 107, P.O. Box 550, Mankato, MN 56002-0550 (for appellant)


Jay T. Squires, Ratwik, Roszak & Maloney, 300 U.S. Trust Building, 730 Second Avenue South, Minneapolis, MN 55402 (for respondent Blue Earth County Board of Adjustment)


Suzette E. Johnson, Johnson & Anderson, 600 South Second Street, P.O. Box 637, Mankato, MN 56002-0637 (for respondent Suzette Johnson)


Considered and decided by Shumaker, Presiding Judge, Willis, Judge, and Poritsky, Judge.*


U N P U B L I S H E D   O P I N I O N




            Appellant challenges the decision of respondent Blue Earth County Board of Adjustment to grant a landowner a variance from the restrictions placed on a legal, nonconforming horse barn, arguing that the board exceeded its statutory authority in granting the variance, exceeded the authority conferred by ordinance, and acted unreasonably in granting the variance.  Because the board’s action was proper, we affirm. 


            Respondent Suzette Johnson owns a horse stable.  In 1983, Blue Earth County Board of Adjustment (the board) rezoned Johnson’s property from residential to agricultural and issued a conditional-use permit for her horse stable.  On June 8, 1996, Blue Earth County adopted a general land-use ordinance providing regulations and restrictions for various land-use districts.  Johnson’s property was a conforming use at this time.

On February 22, 2000, Blue Earth County adopted a new Shoreland Ordinance, and Johnson’s property became a permitted nonconforming use.  Johnson’s horse stable is considered a feedlot and is prohibited by the Shoreland Ordinance.  In April 2000, the horse barn was destroyed by fire.

            Johnson wanted to rebuild the barn and requested a variance from Garden City Township from the setback requirement.  The township approved the variance. 

Johnson then requested that the board issue a variance to permit the reconstruction of the horse barn, alleging practical difficulty.  The practical difficulty she alleged was that, while the barn is a legal nonconforming use, it is prohibited by the Shoreland Ordinance, and it would be impossible to reconstruct the barn without a variance.  The board approved the variance by resolution, conditioned upon the issuance of a new conditional-use permit authorizing reconstruction of the barn.

Appellant, a neighboring landowner, appeals the issuance of the variance, arguing that the board exceeded its statutory authority in granting the variance, exceeded its authority conferred by ordinance, and unreasonably granted the variance.



1.         The board’s statutory authority


Appellant argues that the board exceeded its statutory authority under Minn. Stat. § 394.27, subd. 7 (2000), by granting a variance for a use that is prohibited by ordinance.  When proceedings before a board of adjustment are fair and complete, appellate review is based on the record of the board’s proceedings, not on the district court’s findings or conclusions.  Kismet Investors, Inc. v. County of Benton, 617 N.W.2d 85, 90 (Minn. App. 2000), review denied (Minn. Nov. 15, 2000).

A board of adjustment has broad discretion to grant or deny variances, and we review the exercise of that discretion to determine [if] it was reasonable.



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.



            Appellant focuses on two sources of authority in support of his argument: the Blue Earth County, Minn., Shoreland Ordinance § 0110.0706, subp. 2 (B) (1) (Feb. 22, 2000), which states that “[n]ew feedlots must not be located within designated shoreland areas,” and Minn. Stat. § 394.27, subd. 7, which states that “[n]o variance may be granted that would allow any use that is prohibited in the zoning district in which the subject property is located.”  Appellant argues that the board exceeded its statutory authority by allowing Johnson to rebuild the barn despite the prohibition on new feedlots under Ordinance subpart 2 (B) (1) and the statute that prohibits variances for a use not allowed by the zoning district. 

In re Matter of Kenney, 374 N.W.2d 271 (Minn. 1985), provides guidance on this issue.  In Kenney, the petitioner obtained a building permit from the township for the reconstruction of his boathouse.  Id. at 272.  The petitioner then “substantially dismantled, rebuilt and renovated” his boathouse, increasing its value by more than 50%.  Id.  The county had adopted an ordinance prohibiting new boathouses and additions or alterations to boathouses, but boathouses existing prior to the enactment of the ordinance were permitted to remain as nonconforming uses.  Id.  Repairs could be made upon the boathouses, as long as they did not increase the value of the boathouse by more than 50%.  Id. at 272-73.

The petitioner did not know of the county ordinance when he did the work, and because the work was prohibited under the ordinance, the township clerk erroneously issued the permit.  Id.  The error was not realized until someone complained of the construction and the county investigated.  Id. at 273.  Petitioner then applied for the appropriate permit, which was denied, and the county ordered the boathouse removed.  Id.

The court found that Minn. Stat. § 394.27, subd. 7, authorizes the board of adjustment to grant variances from official controls.  Id.  The court found that, despite the prohibition on variances from uses prohibited in the zoning district, the board has the exclusive power to order the issuance of variances “from the terms of any official control including restrictions placed on nonconformities.”  Id. at 274 (quoting Minn. Stat. § 394.27, subd. 7).  The court concluded that “[t]he clause forbidding variances for prohibited uses would apply to any other official control of property use, restrictions on nonconforming uses being an exception.”  Id.  In effect, the court determined that the board has the authority to grant a variance from restrictions placed upon permitted nonconforming structures, even if the use is prohibited.

In this case, Johnson’s feedlot was a permitted, nonconforming use.  A Blue Earth County ordinance allows the rebuilding of a nonconforming structure, after it is damaged or destroyed by a disaster, if a conditional-use permit is obtained.  Blue Earth County, Minn., Land Use Ordinance § 0100.1405, subp. 7 (E) (June 8, 1996).  The rebuilding of the barn would be a restriction on a nonconforming use, since the barn was nonconforming and the rebuilding of such is regulated by ordinance.  Therefore, the board had the exclusive power to issue a variance from the prohibition on new feedlots and to allow the barn to be rebuilt.  Because the board has the authority to grant a variance for this work, the board did not exceed its statutory authority in doing so.

In a prior case involving the parties to this appeal, we pointed out that, by attaching conditions to a variance, a board of adjustment is able to remedy or mitigate “some of the potential harms of continuing a nonconforming use.”  Buss v. Johnson (Buss I), 624 N.W.2d 781, 788 (Minn. App. 2001).  We held that if we were to invalidate the board’s action, “we would effectively strip the board of adjustment of its ‘exclusive power’ to grant conditional variances” and would thereby undercut the board’s ability “to grant a variance that protects both public and private interests.”  Id.

In re Kenney also addresses appellant’s argument that the district court incorrectly determined that Johnson’s variance was an area variance, rather than a use variance.  The court held that

it is unnecessary to read into the terms of [Minn. Stat. § 394.27, subd. 7] the area variance/use variance distinction.  Indeed, given that the statutory definition of nonconformity clearly includes nonconforming uses, it seems to violate the clear meaning of the statute to interpret the board’s variance power for restrictions upon nonconformities as limited to area variances.


In re Kenney, 374 N.W.2d at 274; see also Minn. Stat. § 394.22, subd. 8 (2000) (“nonconformity” means any legal use or structure).  Thus, since the board has the authority to grant the variance regardless of whether the variance is use-based or area-based, appellant’s argument has no merit in this context.  Furthermore, as mentioned above, on appellate review, we do not review the district court’s findings or conclusions, but rather we review the record of the board’s proceedings.  Kismet, 617 N.W.2d at 90.  Thus, we would not consider whether the district court erred in its determination whether the variance was a use variance or an area variance; rather, we only look at the board’s determinations.

            Appellant argues that Kismet, id. at 85, supports his argument that the board exceeded its statutory authority.  In Kismet, an establishment that originally housed restaurants began operating as an adult cabaret.  Id. at 88.  Soon thereafter, the county adopted an ordinance regulating adult uses.  Id. at 88-89.  The ordinance permitted adult establishments in certain areas, but designated them as nonconforming uses in other areas until a certain date, after which they would become unlawful uses.  Id.  The adult cabaret  became an unlawful use in its current location.  Id. at 89.  The proprietor of the adult cabaret applied for, and was denied, a variance.  Id.

            The circumstances in Kismet are different from those in this case.  The variance request in Kismet involved an illegal use.  The variance in this case involves a legal, nonconforming use.  Because the variance in this case is from relief from restrictions placed on nonconformities, rather than from an ordinance declaring a use illegal, Kismet is distinguishable from this case and is not persuasive.

2.         Rebuilding the barn violates the ordinance

Appellant argues that the board exceeded its authority by granting a use variance when it is limited to issuing area variances only.  The Blue Earth County, Minn., Shoreland Ordinance § 0110.0405, subp. 92 (Feb. 22, 2000), states that “[v]ariances shall be limited to height, density, and yard requirements.”  Similarly, the Blue Earth County, Minn., Land Use Ordinance § 0100.0404, subp. 79 (June 8, 1996), states that “[v]ariances shall be limited to height, bulk, density, and yard requirements.”

But the board of adjustment is also given the power to

vary or modify the strict application of any of the regulations or provisions contained in this Ordinance in cases in which there are practical difficulties or unnecessary hardships in the way of such strict applications * * * .


The board did not exceed its authority in granting Johnson a variance. 

3.         Board’s reasonableness in granting the variance

a.         Variance versus general purpose and intent of official control

Appellant argues that the variance does not meet the general purposes and intent of the official control, in violation of Minn. Stat. § 394.27, subd. 7.  This statute requires the variance to be in harmony with the general purposes and intent of the official control.  Interpretations of state statutes and existing local zoning ordinances are questions of law, which we review de novo.  Buss I at 784.

The “official control” is the

legislatively defined and enacted policies, standards, precise detailed maps, and other criteria, all of which control the physical development of a municipality or a county or any part thereof or any detail thereof, and are the means of translating into ordinances all or any part of the general objectives of the comprehensive plan.  Such official controls may include but are not limited to ordinances establishing zoning [and] subdivision controls * * * .


Minn. Stat. § 394.22, subd. 6 (2000); see also Minn. Stat. § 394.25, subd. 2 (2000) (zoning ordinances may establish districts to aid in the conservation of shorelands by encouraging, regulating, or prohibiting uses).  In this case, the official control is the Blue Earth County Shoreland Ordinance, and appellant raises this argument only in this context.

The statement of policy and purpose is contained in Blue Earth County, Minn., Shoreland Ordinance § 0110.0101, subp. 2 (Feb. 22, 2000), which is to conserve shorelands and public waters:

[I]t is in the best interests of the public health, safety and welfare to provide for the wise subdivision, use and development of shorelands of public waters.  The Legislature of Minnesota has delegated responsibility to local governments of the state to regulate the subdivisions, use and development of the shorelands of public waters and thus preserve and enhance the quality of surface waters, conserve the economic and natural environmental values of shorelands, and provide for the wise use of waters and related land resources.


            The record reveals that concerns relating to possible pollution of the lake were raised and investigated in considering whether to grant Johnson a variance, and the investigation revealed no evidence that Johnson’s feedlot contributed to any pollution of the lake:

[Regarding] any specific testing that was done in the vicinity of that feedlot or anything that could be * * * directly attributed back to that feedlot.  * * * [T]he testing was mainly at * * * inlets to the lake and there was nothing identified in that study as point source pollution. * * * [S]he said that there is a phosphorus problem in that lake and one of the things that we have got in this county is a lot of naturally occurring phosphorus in the soils.  * * * I’m sure that probably some of it does come from the feedlot.  It’s quite possible that it comes from other source such as septic systems around the lake * * * or from naturally occurring situations when soils along the shoreland is eroded away and the soil gets into the lake and * * * releases phosphorus into the lake.  But I guess the gist of it is * * * I wanted to make sure that when I talked to Julie, [unknown affiliation], that if there was any way that this was * * * if that study did point a finger specifically at that feedlot that I would deal with that * * * and she told me that that was not the case.

            Because there is no evidence that the feedlot was contributing to the pollution to the lake in a manner that is contrary to the policy articulated in the Shoreland Ordinance, the variance is in harmony with the general purposes and intent of the Shoreland Ordinance, and the board acted in accordance with Minn. Stat. § 394.27, subd. 7.

b.         Practical difficulty

Appellant argues that the board erred in granting the variance based upon “practical difficulty” because that is not legally sufficient to sustain a variance.  We will set aside a decision in a zoning variance matter if the decision is unreasonable.  Rowell v. Bd. of Adjustment of the City of Moorhead, 446 N.W.2d 917, 921 (Minn. App. 1989), review denied (Minn. Dec. 15, 1989).  The board’s decision is unreasonable and will be reversed if its stated reasons are legally insufficient or without factual basis.  Id. 

Although it is not always clear, precedent indicates that “practical difficulty” is an alternate basis for granting a variance.  See Graham v. Itasca County Planning Comm’n, 601 N.W.2d 461, 468 (Minn. App. 1999) (finding that precedent has treated practical difficulty as a separate basis for granting a variance, but noting Rowell, 446 N.W.2d at 922, which uses practical difficulty as the first part of a three-part hardship test).  In Graham, the court affirmed the variance decision because the record supports the board’s decision with substantial evidence and because the board acted reasonably in its variance decision.  Id.

A review of the record shows that the evidence supports the board’s decision.  The board properly considered the difficulty that strict enforcement of the ordinance would create, particularly Johnson’s need for the variance in order to rebuild the barn.

c.         Undue hardship and miscellaneous issues

Appellant argues that the board does not have the authority to base the grant of the variance on “undue hardship.”  There is no indication in the petition, the minutes of the meeting regarding the variance, or the district court order that Johnson ever alleged undue hardship.  Rather, Johnson alleged only practical difficulty.  Therefore, we will not address this issue.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (we generally will not consider issues not considered below).

Furthermore, appellant argues that Johnson presented no evidence of economic hardship, but economic hardship alone is insufficient to sustain a variance.  Again, there is no indication anywhere in the record indicating that Johnson requested a variance because of an economic hardship, and this issue is not considered.  See id. (we generally will not consider issues not considered below). 

Lastly, appellant argues that the district court erred in sustaining the board’s decision.  But, as mentioned above, on appeal we do not review the district court’s findings or conclusions; rather, we consider the record before the board.  Kismet, 617 N.W.2d at 90.  Thus, we do not consider this issue.  


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