This opinion will be unpublished and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
Steve Hill, et al.,
Filed November 29, 2005
Wright County District Court
File No. C5-03-3588
Bruce Grostephan, Peterson, Engberg & Peterson, 700 Old Republic
Jay Squires, Ratwik, Roszak & Maloney, P.A., 300
Considered and decided by Worke, Presiding Judge; Hudson, Judge; and Wright, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from summary judgment dismissing appellants’ challenge to respondents’ denial of appellants’ zoning application to sell a lot independently from any other lot, appellants argue that (1) respondents failed to comply with Minn. Stat. § 15.99 (2004); (2) the denial of their application was unreasonable and arbitrary; (3) the denial constitutes a “taking” of their land; and (4) they were denied equal protection of the law. We affirm.
10, 2003, appellants Steve Hill and
On July 14, 2003, appellants were notified that their application was incomplete because a survey was not attached and no reasons were given for the request. Appellants submitted a survey two days later. On August 8, 2003, respondents considered appellants’ request and mailed notice to appellants indicating:
[Y]our item heard on August 8, 2003 was continued
to September 12, 2003 . . . . The reason for the continuance is:
On September 12, 2003, respondents again considered appellants’ request. It was noted that Tract B was contiguous with Tract A, a 3.4-acre parcel also owned by appellants. Under Wright County Zoning Ordinance (WCZO) § 404 (2003), lots that are less than 20,000 square feet are not saleable if the owner has contiguous lots. Appellants’ attorney suggested that Tracts A and B were not contiguous and that appellants intended to sell Tract B with Tract C, another 20-acre parcel owned by appellants. Respondents unanimously determined that Tract B was unbuildable and to keep it in joint ownership with Tract A. The county attorney was directed to prepare findings consistent with the board’s determination for adoption at an October 10 hearing.
Thereafter, respondents sent notice to appellants advising: “your item heard on September 12, 2003 was continued to October 10, 2003 . . . . The reason for the continuance is: Findings to be drafted and adopted consistent with denial of the request.” Respondents met on October 10 and denied appellants’ request. The same day, appellants were provided written findings and reasons for the denial, as well as the September 12 meeting minutes. Appellants brought suit in district court challenging the denial. After a hearing, the district court granted respondents’ motion for summary judgment and this appeal follows.
D E C I S I O N
appeal from summary judgment, this court determines whether any genuine issues
of material fact exist and whether the district court erred as a matter of
by Cooper v. French, 460 N.W.2d 2, 4 (
Respondents complied with
argue that the district court erroneously determined that respondents complied
with Minn. Stat. § 15.99 (2004).
This court reviews de novo the district court’s interpretation of the
law, including questions of statutory interpretation. Sorenson
v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (
a. 60-day time limit
Appellants argue that their application should be approved because respondents failed to deny their request within the 60-day time limit. “[A]n agency must approve or deny within 60 days a written request relating to zoning . . . . Failure of an agency to deny a request within 60 days is approval of the request.” Minn. Stat. § 15.99, subd. 2(a). The agency’s 60-day time limit begins upon the agency’s receipt of a written request containing all required information. Minn. Stat. § 15.99, subd. 3(a). However, the agency may extend the 60-day time limit “before the end of the initial 60-day period by providing written notice of the extension to the applicant. The notification must state the reasons for the extension and its anticipated length, which may not exceed 60 days unless approved by the applicant.” Minn. Stat. § 15.99, subd. 3(f).
Respondents were required to act
within 60 days of appellants’ July 10, 2003 application, but respondents’
August 8 written notice provided that they would require up to an additional 60
days. Appellants argue that respondents were
then required to act within 60 days of the August 8 notice. However, the notice did not state that
respondents would approve or deny the application within 60 days from the date
of the notice, and appellants’ interpretation of Minn. Stat. § 15.99,
subd. 3(f) would interrupt and cut short respondents’ initial 60-day
In Moreno v. City of Minneapolis, 676 N.W.2d 1, 5 (Minn. App. 2004), this court referred to the time limit in Minn. Stat. § 15.99 by stating: “The time limit in subdivision 2 may be extended up to a total of 120 days if, before the end of the initial 60-day period, the city provides written notice of the extension to the applicant.” Cf. Manco of Fairmont, Inc. v. Town Bd. of Rock Dell Twp., 583 N.W.2d 293, 296 (Minn. App. 1998) (“The additional 60-day extension allowed under subdivision 3(f) serve[s] as evidence of the legislature’s intent to require government to make decisions within 120 days of its initial consideration.”), review denied (Minn. Oct. 20, 1998). Respondents had 120 days from either July 10, 2003, or July 16, 2003, if appellants’ application was not complete until respondents received the survey. Respondents timely denied appellants’ application on October 10, 2003.
b. Extenuating circumstances
argue that respondents can grant an extension based only on extenuating circumstances. However, the Minnesota Supreme Court has held
that Minn. Stat. § 15.99, subd. 3(f) does not limit an extension for
extenuating circumstances, “it merely requires that the reasons be stated.”
c. Consistent oral and written reasons for the denial
argue that respondents violated Minn. Stat. § 15.99, subd.
2(a) by failing to state in writing the reasons for the denial “at the time
that it denie[d] the request.” In Demolition Landfill Servs., LLC v. City of
This case is similar to Concept Properties. On September 12, 2003, respondents denied appellants’ application by finding Tract B unbuildable and in joint ownership, but did not make written findings. On October 10, 2003, respondents met, denied appellants’ request and provided simultaneous written reasons for the denial before the response deadline. Thus, respondents complied with Minn. Stat. § 15.99, subd. 2(a). Further, “[t]he requirement that contemporaneous findings be recorded prevents a city from offering after-the-fact justifications . . . unrelated to the actual reasons for the initial decision.” Demolition Landfill, 609 N.W.2d at 282 (quoting R.A. Putnam & Assoc. v. City of Mendota Heights, 510 N.W.2d 264, 267 (Minn. App. 1994)). Here, the written reasons for the denial are the same reasons discussed at the September 12 meeting; thus, there is not the problem of unrelated after-the-fact justifications.
Appellants also argue that the September 12 motion does not speak to the application and that the written findings are inconsistent with the motion. Appellants requested to sell Tract B independent from any other lot. Under WCZO § 404 (3) (2003), an individual lot that is less than 20,000 square feet and contiguous to another lot under the same ownership may not be considered a separate parcel of land for the purposes of sale or development. The motion, “this is an unbuildable lot, and it’s held in joint ownership” addresses the application. Under WCZO § 404 (3), Tract B, which is held in joint ownership with contiguous Tract A, is less than 20,000 square feet and may not be considered a separate parcel for sale. Further, the motion and the written findings are consistent because the September 12 meeting minutes are incorporated into the written findings.
d. Impermissible delay
Appellants argue that respondents impermissibly delayed acting on their application. Respondents initially sent written notice four days after receipt of appellants’ application requesting a completed application. “If an agency receives a written request that does not contain all required information, the 60-day limit starts over only if the agency sends written notice within 15 business days of receipt of the request telling the requester what information is missing.” Minn. Stat. § 15.99, subd. 3(a). Respondents extended their time in which to respond an additional 60 days under Minn. Stat. § 15.99, subd. 3(f). Appellants argue that respondents cannot delay under both provisions. However, there is nothing prohibiting respondents from requesting a completed application and extending their time in which to respond an additional 60 days. Additionally, respondents did not extend the time limit twice to avoid acting on appellants’ application—the first delay was caused by appellants’ failure to submit a complete application.
Appellants also argue that the August 8 notice did not comply with Minn. Stat. § 15.99, subd. 3(a). However, the August 8 notice permitted an extension under Minn. Stat. § 15.99, subd. 3(f). An extension is allowed if written notice is provided before the end of the initial 60-day period and “state[s] the reasons for the extension and its anticipated length, which may not exceed 60 days unless approved by the applicant.” Minn. Stat. § 15.99, subd. 3(f). The August 8 written notice extended the time limit before the end of the initial 60-day period, because the county attorney had to review the application, and it anticipated a decision at the next hearing, but not beyond an additional 60 days. Respondents did not impermissibly delay acting on appellants’ application. The district court correctly determined that respondents complied with Minn. Stat. § 15.99 and appropriately granted summary judgment in favor of respondents.
Respondents’ decision was not unreasonable, arbitrary, or capricious
a. WCZO § 404 (2003)
argue that respondents unreasonably interpreted WCZO § 404 (2003). The interpretation of an
ordinance is a question of law subject to de novo review. Gadey v. City of Minneapolis, 517
N.W.2d 344, 347 (Minn. App. 1994), review denied (Minn. Aug. 24,
1994). Three general rules of
construction guide this court’s interpretation: (1) terms in zoning ordinances
are given their plain and ordinary meaning; (2) “zoning ordinances should be
construed strictly against [a] city and in favor of [a] landowner”; and (3)
zoning ordinances must be considered in light of their underlying policy
goals. Frank’s Nursery Sales, Inc. v.
City of Roseville, 295 N.W.2d 604, 608-09 (
Appellants contend that under WCZO § 404, Tract B can be sold separately. WCZO § 404 states:
Lots of record
in the office of the
(1) They have frontage on an existing public right-of-way or have frontage on an existing easement or other private roadway existing prior to January 1, 1977.
(2) They have at least 20,000 square feet of area. Lots smaller than 20,000 square feet may be used as dwelling sites if the owner can prove that adequate sanitary facilities can be provided. Said sanitary facilities must be located on the same lot of record as the dwelling, or on adjacent land which is legally available to the owner . . . .
(3) In a group of two or more contiguous lots under the same ownership, if an individual lot has less than 20,000 square feet of area, no lot nor lots may be considered as a separate parcel of land for the purposes of sale or development unless each separated parcel and the reminder contains at least 20,000 square feet of lot area.
Appellants requested authorization to sell Tract B independent from any other lot; thus, appellants requested a variance from WCZO § 404(3). Appellants argue, however, that they do not need a variance because they own Tract C, whichis contiguous to Tract B, has adequate sanitary facilities, and has a building entitlement. But appellants only requested “to sell [Tract B] independently from any other lot.” Tract C and its relationship to Tract B are irrelevant. Respondents correctly interpreted WCZO § 404 in light of appellants’ application.
b. The decision was not unreasonable, arbitrary, and capricious
Appellants argue that the denial was unreasonable, arbitrary, and capricious. This court has held:
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.
County of Benton, 617 N.W.2d 85, 90 (Minn. App. 2000)
(citations omitted), review denied (
The 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.
Under WCZO § 502.3 (2003):
The 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 appellant fails to prove only one of the conditions, the Board of Adjustment cannot legally grant the Variance.
The record of respondents’ proceedings shows that appellants failed to meet four of the five requirements. Specifically, respondents determined (1) the variance would conflict with the county’s comprehensive plan to “protect the natural environment and make wise use of the county’s resources without degradation” because of unnecessary development and crowding on a parcel that has a steep grade and potential sewer problems, (2) Tract B would continue to have value as lake access for Tract A, (3) appellants presented no evidence of a unique hardship, and (4) the variance would alter the character of the neighborhood by developing a small property beyond the policy bounds adopted in the county’s land-use plan. Under WCZO § 502.3, if appellants failed to prove only one of the conditions respondents could not legally grant the variance. Appellants failed to prove four of the five conditions; therefore, respondents’ decision to deny the variance was reasonable.
Respondents’ denial of appellants’ application does not constitute a “taking”
argue that the denial violates the Minnesota Constitution which provides:
“Private property should not be taken, destroyed or damaged for public use without
an unconstitutional taking a landowner must demonstrate that he had been
deprived, through governmental action or inaction, of all the reasonable uses
of his land.” Holaway v. City of
Appellants were not denied equal protection of the law
Appellants argue that they were denied equal protection of the law because appellants discovered eight transactions which should have raised issues under WCZO § 404, but their application was the only one scrutinized and denied.
A zoning ordinance must operate uniformly on those similarly situated . . . . [T]he equal protection clauses of the Minnesota Constitution and of the Fourteenth Amendment of the United States Constitution require that one applicant not be preferred over another for reasons unexpressed or unrelated to the health, welfare, or safety of the community or any other particular and permissible standards or conditions imposed by the relevant zoning ordinances.
Nw. College v. City of Arden
Hills, 281 N.W.2d 865, 869 (
suggest that eight “similarly-situated” properties were treated more favorably;
however, all of the situations occurred years before appellants’ application. See Stotts v.
This court cannot properly consider appellants’ subdivision issue
argue that respondents accused them of creating an illegal subdivision by
selling Tract A without Tract B. Appellants
did not raise this issue on summary judgment.
Because this court generally considers “only those issues that the record
shows were presented and considered by the trial court in deciding the matter
before it,” we decline to address this issue for the first time on appeal. Thiele
v. Stich, 425 N.W.2d 580, 582 (