This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Campbell, et al.,
The Wright County Board of Adjustment, et al.,
Filed September 6, 2005
Wright County District Court
File No. CX033960
Gregory M. Miller, Jamie R. Pierce, Mansfield, Tanick & Cohen, P.A., 1700 US Bank Plaza South, 220 South Sixth Street, Minneapolis, MN 55402 (for appellants)
Reuvers, Jason M. Hiveley, Iverson Reuvers,
Considered and decided by Wright, Presiding Judge; Toussaint, Chief Judge; and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
This appeal is from a summary judgment rejecting appellant’s challenge to the Wright Count Board of Adjustment’s denial of appellant’s variance application. We affirm.
are siblings who own a cabin that their grandparents built during the 1940s on
a lakefront lot in
Appellants brought suit in district court seeking review of the denial. When appellants sought discovery of all variance applications filed with the county in the last ten years, the county obtained a protective order in which the district court ruled that the county did not have to produce the applications and that only one member of the BOA could be deposed. The district court granted the county’s motion for summary judgment, ruling, among other things, that (a) substantial evidence supported the BOA’s denial of appellants’ variance application; (b) appellants did not show that the county had granted variance applications that were similar to appellants’ application; and (c) the county did not deny appellants due process of law. This appeal challenging the summary judgment and the protective order followed.
On appeal from a summary judgment, appellate courts
review whether there are any genuine issues of material fact and whether the district court erred in its application of the law. We view the evidence in the light most favorable to the party against whom summary judgment was granted. We review de novo whether a genuine issue of material fact exists. We also review de novo whether the district court erred in its application of the law.
STAR Ctrs., Inc. v. Faegre
& Benson, L.L.P., 644 N.W.2d 72, 76-77 (
A board of adjustment has broad discretion to grant or deny variances, and we review the exercise of that discretion to determine whether 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. When proceedings before a board are fair and complete, appellate review is based on the record of the board’s proceedings, not the district court’s findings or conclusions.
Kismet Investors, Inc. v.
variance applicant has the burden of showing that granting the variance is
appropriate. Luger v. City of
[t]he board of adjustment shall have the exclusive power to order the issuance of variances from the terms of any official control including restrictions placed on nonconformities. Variances shall only be permitted when they are in harmony with the general purposes and intent of the official control in cases when there are practical difficulties or particular hardship in the way of carrying out the strict letter of any official control, and when the terms of the variance are consistent with the comprehensive plan. “Hardship” as used in connection with the granting of a variance means 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. Economic considerations alone shall not constitute a hardship if a reasonable use for the property exists under the terms of the ordinance.
other variances granted by the BOA, appellants argue that the BOA denied them equal
protection of the law by requiring them, but not other variance applicants, to
satisfy the WCZO’s requirements for granting a variance. “Essential to a ruling that equal protection
has been denied by discriminatory administration of the laws is a finding that
the persons treated disparately are similarly situated.” State
by Spannaus v. Lutsen Resorts, Inc., 310 N.W.2d 495, 497 (
Furthermore, under the WCZO,
[t]he Board of Adjustment shall not grant a Variance unless it finds the following facts at the hearing where the applicant shall present a statement of evidence proving the following:
(1) The granting of the Variance will not be in conflict with the Comprehensive Plan;
(2) The property will not yield a reasonable return if used in compliance with this Ordinance;
(3) The conditions causing the hardship are unique and are not shared by neighboring property in the same zone;
(4) The granting of the Variance will not essentially alter the character of the neighborhood; and,
(5) The granting of the Variance will not adversely affect the environmental quality of the area.
If the [applicant] fails to prove only one of the conditions, the Board of Adjustment cannot legally grant the Variance. The burden of proof of these matters rests on the applicant. He is requesting a special privilege, and it is incumbent upon him to prove that the conditions necessary for granting of the privilege are satisfied.
that they were held to a higher standard than other variance applicants because
the BOA did not require the other applicants to prove the requirements in section 502.3
is essentially an allegation that the BOA failed to properly enforce the WCZO
against other variance applicants. Because
the BOA previously misapplied the WCZO by not requiring applicants to prove a
hardship and the requirements in section 502.3, appellants are asking this
court to require the BOA to continue misapplying the ordinance. But “[a]n applicant for a variance is not
entitled to a variance merely because similar variances were granted in the
past. Otherwise, the granting of one
variance would likely result in the destruction of the entire zoning
scheme.” In re Variance Request of Johnson, 404 N.W.2d 298, 301 (Minn. App.
1987), overruled on other grounds by Myron v. City of Plymouth, 562 NW.2d 21
(Minn. App. 1997), aff’d without opinion,
581 N.W.2d 815 (Minn. 1998); see also
Appellants argue that the district court’s statement in its conclusions of law that “[t]here is no persuasive evidence before the Court that [appellants’] request, if granted, would not alter the essential character of the locality” demonstrates that the district court incorrectly weighed the evidence, rather than viewing the evidence in the light most favorable to appellants. Appellants contend that because the district court overstepped its authority, the summary judgment should be reversed. Appellants also contend that the finding that the variance would alter the essential character of the neighborhood is clearly erroneous.
Even if the district court’s reference to “persuasive evidence” demonstrates that the court weighed evidence, rather than viewing the evidence in the light most favorable to appellants, any error in doing so does not, by itself, provide a basis for reversing the summary judgment. To obtain a variance, appellants needed to prove that all of the five requirements in section 502.3 were met; proving that granting the variance will not essentially alter the character of the neighborhood was only one of the five requirements. Therefore, even if appellants proved that granting the variance will not essentially alter the character of the neighborhood, the BOA could still deny the variance if appellants failed to prove any of the four other requirements.
The district court found, and the record shows, that the BOA considered all five of the requirements that must be met for the BOA to grant a variance under section 502.3 of the WCZO. The BOA’s decision was not based on appellant’s failure to prove that granting the ordinance will not essentially alter the character of the neighborhood. In fact, the BOA’s general findings of fact indicate that the BOA did not find that granting the variance will essentially alter the character of the neighborhood. However, the BOA did find that the four other requirements of the ordinance were not met, which provided a basis for denying the variance.
Appellants argue that the district court erred in finding that the BOA’s findings were supported by the facts in the record. Appellants contend that the BOA’s findings were conclusory at best and that no evidence was offered to support a denial of the variance.
The BOA specifically found that “[t]here is no hardship involved in this particular variance request. The property was perfectly usable without the ten foot addition on the residence, and without the additional ten foot deck extension.” The BOA also found that “[t]he proposed and existing additions result in a request that is not ‘reasonable’ under all the circumstances involved. . . . The residential cabin, as it existed, was already crowding the north property line and was already within 48 feet of the lake.”
The WCZO precludes granting a variance unless a “hardship” exists, and “hardship”
means 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 his property, not created by the landowner; and the Variance, if granted, will not alter the essential character of the locality. Economic considerations alone shall not constitute hardship if a reasonable use of the property exists under the terms of this Ordinance.
The findings are also supported by the record. There is no dispute that appellants used their property regularly before building the addition and the deck, which demonstrates that the property could be put to a reasonable use under the existing controls. There is also no dispute that before the addition and deck were built, the cabin violated the setback requirements, and the addition and deck increased the violations.
Rowell v. Bd. of Adjustment, 446
N.W.2d 917, 922 (Minn. App. 1989), review
denied (Min. Dec. 15, 1989), appellants argue that the BOA improperly
required them to demonstrate that their property cannot be put to any
reasonable use without the variance. In Rowell, this court interpreted the
requirement that the property cannot be put to a reasonable use without the
variance “as requiring a showing that the property owner would like to use the
property in a reasonable manner that is prohibited by the ordinance.”
We conclude that the finding of no hardship is not defective, and it is fatal to the variance application under Wright County Zoning Ordinance §§ 502-03. It is not necessary to address the BOA’s other findings.
A. Procedural Due Process of Law
due process of law requires that a party be provided a meaningful opportunity
to be heard in a meaningful manner. Mathews v. Eldridge, 424
Appellants also argue that the BOA’s characterization of their actions as “egregious” simply because appellant John Campbell is a building contractor who “should have known better” influenced the BOA despite case law that provides that actual or constructive knowledge of a zoning ordinance is not a bar to granting a variance.
In Myron, a property owner purchased a lot
that was unbuildable because complying with setback requirements resulted in
violating the minimum building-pad size.
562 N.W.2d at 22. The city
council denied the property owner’s requests for a variance based on its
finding that the property owner was aware when he purchased the property that a
variance was necessary to make the property buildable.
Myron has no application to the facts of this case because the BOA did not deny appellants’ variance application simply because John Campbell knew about the WCZO before he built the addition and deck. The BOA denied the variance application because it determined that building the addition and deck on the lake side of the cabin was not a reasonable use of the property.
Alleging that a
member of the BOA said that the BOA was “going to make an example” of them, appellants
also argue that the hearing before the BOA could not have been fair. But because appellants failed to prove that
they met all five of the requirements for obtaining a variance, the BOA was
precluded from granting a variance. Wright
B. Substantive Due Process of Law
substantive due process claim in the zoning context exists, if at all, only in
extraordinary situations and will not be found in ‘run-of-the-mill’ zoning
disputes” because the government action must be “egregious.”
We have already addressed the weaknesses of each of these claims, and we have concluded that the BOA’s decision to deny appellants’ variance application was reasonable because appellants did not demonstrate that their application met all of the requirements for obtaining a variance. It is not an egregious government action to deny a variance application that does not meet the requirements for a variance.
The district court granted the county’s motion for a protective order, ruling that the county did not need to produce the variance applications it received during the past ten years and that appellants were limited to deposing one member of the BOA. Appellants challenge both limitations in the protective order.
absent a clear abuse of its “broad discretion” regarding protective orders, a
district court’s decision regarding a protective order will not be altered on
appeal. WDSI, Inc. v.
Appellants argue that the municipal proceedings were unfair, that the failure of the recording system during the hearing before the BOA resulted in the lack of a complete municipal record, and that they were entitled to supplement the record with the variance applications and depositions. Under Honn, “[n]ew or additional evidence may be received at the trial, but it must be relevant to the issues that were raised and considered before the municipal body.” Honn, 313 N.W.2d at 416. Variance applications that are separated in time from appellants’ application cannot meet the similarly situated requirement for an equal-protection claim. Stotts, 478 N.W.2d at 806. Thus, case law supports the district court’s determination that appellants failed to show that production of the variance applications received over the past ten years was “reasonably calculated to lead to discovery of admissible evidence unavailable via some more convenient means.”
Finally, while appellants correctly note that Minn. R. Civ. P. 30.01 allows them to depose “any person,” Minn. R. Civ. P. 26.03 allows the district court, for “good cause,” to grant protective orders to protect a party from undue burden. Appellants do not identify any information that they wanted to get from a BOA member other than the chair of the BOA that could not be obtained from the chair of the BOA and the written record. Thus, appellants have not shown that the district court abused its discretion by allowing them to depose only one BOA member.
 The record contains the transcript of Robert Schermann’s deposition. Schermann is the chair of the BOA. Minutes from BOA meetings during 2002, 2003, and 2004 when the BOA considered variance applications are attached to the transcript as deposition exhibits.
 The district court considered ten other applicants.
WCZO side-yard setback is 15 feet. Wright
lack of similar variance applications also undercuts appellants’ argument that,
under Nw. College v. City of Arden Hills,
281 N.W.2d 865, 868-89 (
 The contention that no evidence was offered to support a denial of the variance ignores the requirement that a variance applicant has the burden of showing that granting the variance is appropriate. The BOA was not required to offer evidence to support a denial of the variance.