This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-02-510

 

 

Ralph L. Ryan, et al.,

Respondents,

 

vs.

 

Township of Wacouta,

Appellant.

 

 

Filed December 10, 2002

Reversed

Robert H. Schumacher, Judge

 

Goodhue County District Court

File No. C600708

 

 

David J. McGee, Christopher P. Renz, Thomsen & Nybeck, P.A., 600 Edinborough Corporate Center East, 3300 Edinborough Way, Edina, MN 55435-5962 (for respondents)

 

Peter B. Tiede, Louise Toscano Seeba, Murnane, Conlin, White & Brandt, P.A., 444 Cedar Street, Suite 1800, St. Paul, MN 55101 (for appellant)

 

 

Considered and decided by Schumacher, Presiding Judge, Randall, Judge, and Hudson, Judge.


U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

The Township of Wacouta appeals the district court's decision finding that a setback variance granted to respondents Ralph L. Ryan and Katherine Ryan by Goodhue County takes precedence over Wacouta's zoning regulations. Wacouta claims that the county variance is not applicable to its zoning regulations as long as the regulations are not inconsistent or more restrictive than the county's regulations. Wacouta also argues that the Ryans' claims should have been barred by the doctrine of laches. We reverse.

FACTS

In 1972, the Ryans purchased a 60-foot lot in Wacouta Township. The sale of the property was contingent on the Ryans being able to construct a building on the lot with a reduced sideyard setback. On June 6, 1972, the Ryans requested and received a nonconforming use permit to build a 20-foot by 30-foot chalet-style house on the lot. By ordinance, the nonconforming use permit was to expire after one year of nonuse. On June 19, 1972, the Ryans applied for and received from the county a 10-foot sideyard setback variance, and it was recorded with the county.

The Ryans did not build on the property between 1972 and 1983. In June of 1984, they made a request for a building permit to construct a garage on the property. Wacouta and the county granted the permit. The permit allowed the Ryans to build the garage ten feet from the property line.

On April 17, 2000 the Ryans applied to Wacouta for a variance to allow them to build a dwelling that would set back eight feet from the property line, instead of the 15-foot sideyard setback now required by the zoning ordinance. Wacouta voted to deny the variance and informed the Ryans that it would not honor the variance granted to them by the county for a 10-foot sideyard setback.

The Ryans commenced a declaratory judgment action against Wacouta, claiming that based on the variance granted by the county in 1972 they should be allowed to build a house on the lot with a reduced 10-foot sideyard setback. A court trial was held to determine if the Ryans had an enforceable variance with Wacouta and if the Ryans' claims were barred by the doctrine of laches.

The district court ruled that the 1972 nonconforming use permit was still valid and Wacouta had waived enforcement of the restrictions contained in the permit regarding the type of structure permitted. The court also found that the county variance was valid and controlling over the Wacouta zoning ordinance. The court ordered Wacouta to allow a 10-foot setback and denied Wacouta's motion for amended findings and judgment.

D E C I S I O N

1. Wacouta claims the 1972 nonconforming use permit expired and does not affect its ability to enforce the current 15-foot setback requirement. The interpretation of an existing ordinance is a question of law for this court to review de novo. Frank's Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn. 1980).

The Ryans were granted a nonconforming use permit to build a house in 1972. At that time Wacouta's zoning ordinance provided that, if a " non-conforming use shall cease for a continuous period of one (1) year, such use shall be deemed to have been abandoned and any subsequent use shall be in conformity with this Ordinance." The current town ordinance provides for a 15-foot setback.

Any rights that the Ryans had from the 1972 nonconforming use permit have long since expired. The Ryans did not build a house on their property after receiving the 1972 permit. Their attempt to enforce the permit nearly 30 years later is without support. They clearly abandoned the nonconforming use permit granted by Wacouta by not building on the property.

2. Wacouta also argues that the variance granted by the county is not controlling. The Ryans argue that by statute the county is the exclusive zoning authority allowed to issue variances, and thus Wacouta must abide by the county's variance. Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).

The Ryans claim the county has the exclusive power to grant variances pursuant to Minn. Stat. 394.27. Although the statute provides that the county board has the exclusive authority to grant variances, the authority is for variances from county zoning ordinances. See Appeal of Kenney, 374 N.W.2d 271, 275 (Minn. 1985) (county board of adjustment has authority to issue variance from county zoning restrictions placed on nonconforming uses). Minn. Stat. 462.357 subd. 6 (2002) permits townships to grant variances to a zoning ordinance where strict enforcement would cause "undue hardship." Minn. Stat. 366.12 (2002) grants a town authority to zone, and this authority is separate from that granted to the county.

Minn. Stat. 394.33, subd. 1 (2002) provides that after a county adopts official controls regarding zoning, "no town shall enact or enforce official controls inconsistent with or less restrictive than the standards prescribed in the official controls adopted by the board." This court discussed the meaning of "inconsistent with or less restrictive" in Altenburg v. Bd. of Supervisors of Pleasant Mound Township, 615 N.W.2d 874, 879-80 (Minn. App. 2000) review denied (Minn. Nov. 21, 2000). In Altenburg, we ruled that the term "inconsistent" in the statute means

circumstances where a township implements standards that are different in nature from county standards. For example, a township could not zone an area as a commercial district when the same area has been zoned as a residential district by the county.

 

Id. at 879 (citation omitted).

In Altenburg, the county passed an ordinance limiting the number of animal units in feedlots and the minimum setback requirement for the feedlots. Id. at 877. The town then passed a more restrictive ordinance limiting the number of animal units and minimum setback requirements. Id. The court ruled:

Because the township ordinance [was] more restrictive than, but based on the same standards as, the county ordinances, the ordinance [was] valid under Minn. Stat. 394.33.

 

Id. at 880.

Wacouta's current zoning ordinance, which mandates a 15-foot sideyard setback, is not inconsistent with the county's variance. Wacouta's requirements are not different in nature from the county's requirements. Rather Wacouta made its setback requirement more restrictive than the county, which is within its authority under the statute. We therefore conclude that the county's variance has no effect over Wacouta's 15-foot setback requirement.

3. Based on our ruling above, we decline to rule on Wacouta's argument of laches.

Reversed.