This opinion will be unpublished and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
Randy Nelson, et al.,
Wilson Township Board of Adjustment, et al.,
Filed April 1, 2003
Winona County District Court
File No. C101349
Michael D. Bernatz, Bernatz & Gort, LLC, The Choate Building, 53 East Third Street, Suite 303, P.O. Box 7, Winona, MN 55987-0007 (for respondents)
Cindy K. Telstad, Streater & Murphy, P.A., 64 East Fourth Street, P.O. Box 310, Winona, MN 55987-0310 (for appellant)
Considered and decided by Schumacher, Presiding Judge, Willis, Judge, and Anderson, Judge.
Appellant challenges the district court’s order vacating a zoning variance. Because we conclude that the decision of the Wilson Township Board of Adjustment to grant the variance was reasonable and was not arbitrary or capricious, we reverse.
Appellant Dean Morgan agreed to buy, and Thomas Holmay agreed to sell, 21 acres of land zoned “Agricultural-Natural Resource” (ANR). The purchase agreement was contingent on Morgan receiving a variance to allow the division of the property into three building sites. Morgan and Holmay jointly applied to the Wilson Township Board of Adjustment for a variance from Wilson Township Zoning, Planning, and Building Ordinance § 603.2(13) (1996), which provides that no more than a single “one (1) family or a single two (2) family non-farm dwelling[ ] * * * shall be allowed per quarter-quarter section of land (approximately 40 acres) * * * .” Morgan and Holmay sought a variance to allow construction of three non-farm dwellings after dividing the land into two five-acre parcels and one 11-acre parcel. After public hearings, the board granted the variance.
Respondents challenged the grant of a variance in the district court. After a hearing, the district court issued an order “vacating and annulling” the grant of the variance, concluding that (1) there were no exceptional circumstances that make the land unsuitable for permitted uses and (2) the board’s “[f]ailure to consider a single dwelling as a ‘reasonable use’ * * * prevents a reasonable determination that a ‘hardship’ warrants a variance * * * .” This appeal follows.
Appellate review of zoning decisions is limited to determining whether the local zoning authority’s action was reasonable. Honn v. City of Coon Rapids, 313 N.W.2d 409, 416-17 (Minn. 1981). This court will set aside the local authority’s decision if the decision is unreasonable, and reasonableness is measured by the standards set out in the zoning ordinance. Rowell v. Bd. of Adjustment, 446 N.W.2d 917, 921 (Minn. App. 1989), review denied (Minn. Dec. 15, 1989). We make an independent examination of the local authority’s record and decision, without deference to the district court’s review of the same record. City of Barnum v. County of Carlton, 394 N.W.2d 246, 248 (Minn. App. 1986), review denied (Minn. Dec. 17, 1986). We examine the local authority’s decision to determine whether it was arbitrary or capricious or whether the reasons given for the decision are legally sufficient and have a factual basis. Nolan v. City of Eden Prairie, 610 N.W.2d 697, 701 (Minn. App. 2000), review denied (Minn. July 25, 2000).
Morgan argues that the board’s decision was reasonable and not arbitrary or capricious because (1) the board considered the criteria set forth in the variance provision of the Wilson Township Zoning, Planning, and Building Ordinance that relates to variances and (2) the board’s decision satisfies Minn. Stat. § 394.27, subd. 7 (2002), which defines a “hardship” for which a variance may be granted. Section 506.1 of the Wilson Township Zoning, Planning, and Building Ordinance provides that a variance
may be granted only in the event that the following circumstances exist:
(1) Exceptional or extraordinary circumstances apply to the property which do not apply generally to other properties in the same zone or vicinity, and results from lot size or shape, topography, or other circumstances over which the owners of property since enactment of this Ordinance have had no control.
(2) That literal interpretation of the provisions of this ordinance would deprive the applicant of rights enjoyed by other properties in the same district under the terms of this Ordinance.
(3) That the special conditions or circumstances do not result from the actions of the applicant.
(4) That granting the variance requested will not confer on the applicant any special privilege[s] that are denied by this Ordinance to owners of the other lands, structures, or buildings in the same district.
(5) The variance requested is the minimum variance which would alleviate the hardship.
(6) The variance would not be materially detrimental to the purpose of this Ordinance, or to property in the same zone.
(7) Economic conditions or circumstances alone shall not be considered in the granting of a variance request.
(8) No variance shall have the effect of allowing in any district uses prohibited in the district, permit a lower degree of flood protection than the Regulatory Flood Protection Elevation for the particular area, or permit standards lower than those required by State Law.
Minnesota law provides that “hardship” means that
the property in question cannot be put to a reasonable use if used under the conditions allowed by the official controls; 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.
Minn. Stat. § 394.27, subd. 7 (2002).
Morgan argues that the board’s findings on the criteria are legally sufficient and have a factual basis. Respondents argue that the decision was arbitrary and capricious because the board failed to comply with section 506.1. Respondents also contend that Morgan and Holmay failed to satisfy the requirement for a showing of hardship under Minn. Stat. § 394.27, subd. 7. We conclude that the minutes of the board’s January 30, 2001 meeting and the text of the February 12, 2001 grant of a variance show that the board gave thorough consideration to the criteria set forth in section 506.1.
1. Exceptional or Extraordinary Circumstances
Section 506.1 requires that for a grant of a variance, exceptional or extraordinary circumstances must apply to the property, circumstances over which the owners of the property since enactment of the Wilson Township Zoning, Planning, and Building Ordinance have had no control. The board found exceptional circumstances here because, although the land is zoned ANR, only five or six acres are suitable for agriculture. The board also found that the land is unsuitable for permitted conditional uses of ANR land, such as recreational uses. The record supports the board’s findings; aerial photographs show that all 21 acres are sloped and approximately 14 acres are heavily forested. The exceptional circumstances that the board found result from the natural condition of the land.
2. Deprivation of Rights
A grant of a variance under section 506.1 also requires that a literal interpretation of the ordinance would deprive the applicant of rights enjoyed by other properties in the same zoning district. The board found that a literal interpretation of the ordinance would deprive Morgan and Holmay of rights enjoyed by other properties in the same district because, apart from the parcel at issue here, there are multiple non-farm dwellings per quarter-quarter section of land in the ANR district. The record supports that finding.
Section 506.1 further requires that the special conditions or circumstances do not result from actions of the applicant. The board found that the circumstances are the result of the natural condition of the land and not of the actions of Holmay or Morgan, and nothing in the record suggests otherwise.
4. Special Privileges
Under section 506.1, a grant of a variance may not confer on the applicant any special privilege not enjoyed by owners of the other lands, structures, or buildings in the same district. The board found that, because there are multiple non-farm dwellings per quarter-quarter section of land in the ANR district, granting the variance would confer no special privileges on Morgan and Holmay. As noted earlier, the record shows that there are multiple non-farm dwellings per quarter-quarter section of land in the ANR district.
Section 506.1 requires that the variance requested is the minimum variance that would alleviate the hardship. The board found that Morgan and Holmay requested the minimum variance because most of the land is unsuitable for agriculture or for any of the conditional uses for ANR land permitted by the zoning ordinance. To comply with the requirements for hardship set forth in Minn. Stat. § 394.27, subd. 7, it must be shown that (1) a property owner wants to use property in a reasonable manner that is prohibited by the zoning ordinance, (2) there are circumstances unique to the property that were not created by the landowner, and (3) granting the variance will not alter the essential character of the locality. Rowell, 446 N.W.2d at 922.
Morgan’s proposed use of the 21 acres is reasonable because the board found that there are already multiple non-farm dwellings per quarter-quarter section of land in the ANR district. Further, the division of the property into three parcels is a reasonable use because Holmay and Morgan intend a minimum lot size of five acres, well in excess of the one-acre minimum that section 603.5(5) of the Wilson Township Zoning, Planning, and Building Ordinance specifies.
The requirement that the unique circumstances of a parcel for which a variance is sought not be created by the landowner is satisfied because, as noted earlier, the board found that the unique circumstances are the result of the land’s natural condition rather than any condition that Holmay created.
Finally, the area in which the property is located is a mix of residential, agricultural, and undeveloped land. Building three non-farm dwellings on 21 acres will not, therefore, alter the essential character of the locality. Respondents argue that the board made no finding on this factor. But the board made a finding regarding the existence of multiple non-farm dwellings per quarter-quarter section of land in close proximity to the parcel for which Morgan and Holmay sought a variance, and the record supports that finding.
Under section 506.1, a variance may not be materially detrimental to the purpose of the Wilson Township Zoning, Planning, and Building Ordinance or to other property in the same zone. The board found that the variance is not materially detrimental to either, again citing the presence of multiple non-farm dwellings per quarter-quarter section of land near the parcel for which Morgan and Holmay sought a variance. Respondents argue that the variance is contrary to the township’s comprehensive plan because the plan addresses “a concern for the protection of natural resources * * * , particularly the * * * woodlands and bluffs.” See Minn. Stat. § 394.27, subd. 7 (requiring that “the terms of the variance are consistent with the comprehensive plan”). ANR land exists “for the purpose of protecting, promoting, maintaining and enhancing the use of land for agricultural and timber harvesting purposes * * * .” Wilson Township Zoning, Planning, and Building Ordinance § 603.1. But the comprehensive plan also recognizes that there is a “need for residential expansion” and that decisions about future urban growth “will have an impact on the amount of prime agricultural land taken out of production [and] the natural resources in the township.” The board found that the land at issue is not prime agricultural land. The record supports this finding and, further, nothing in the record suggests that the land is suited for timber-harvesting purposes.
7. Economic Conditions Not Sole Consideration
Section 506.1 provides that economic conditions or circumstances alone may not be considered when deciding whether to grant a variance request. The board stated that “economic conditions were not considered” when it decided to grant Morgan and Holmay’s variance request. Respondents argue that the only factor that the board considered was economic conditions, but they cite nothing in the record to support their contention.
Finally, section 506.1 requires that no variance allow flood-protection standards lower than those required by state law. The board found that the Wilson Township standards are equal to or greater than applicable county or state standards, and none of the parties disputes the board’s finding on this criterion.