This opinion will be unpublished and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
Keiran W. O’Brien, et al.,
Relators (A03-1915), Appellants (A05-444),
Filed December 6, 2005
Application No. 37
John G. Patterson, Martin D. Kappenman, Moore, Costello & Hart, P.L.L.P., 55 East Fifth Street, Suite 1400, St. Paul, Minnesota 55101 (for appellants)
Joseph J. Langel, 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
In these consolidated appeals from the county’s denial of appellant/relator landowners’ applications for a variance and a conditional use permit (CUP), appellants argue that: (1) the county acted unreasonably when, after granting appellants’ land use permit for a house, it denied appellants’ application for the variance necessary for the driveway and landscaping; (2) the district court should have allowed appellants to supplement the record presented to the district court; (3) the denial of the variance was incorrectly based on a failure to satisfy the ordinance’s impervious-surface requirements, where appellants submitted driveway plans using engineered pervious pavers; and (4) the county acted arbitrarily in denying the CUP application. We affirm.
Appellants Keiran and Diane O’Brien
own a lot on
EXISTING HOUSE AND DRIVEWAY MUST BE REMOVED TO BE UNDER THE 25% IMPERVIOUS COVERAGE. TOTAL ALLOWED impervious IS 6,670 - 5,026 = 1,644 – MUST HAVE LRM TECH OUT BEFORE CONSTRUCTION BEGINS TO VERIFY IMPERVIOUS 1,644 is all that is left for driveway, landscape, etc. NOTE: EROSION CONTROL MEASURES ARE TO BE IMPLEMENTED AS NECESSARY DURING ALL PHASES OF CONSTRUCTION
About seven months later, during construction of the new house, appellants applied to the Douglas County Board of Commissioners for a conditional use permit (CUP) for landscaping. The county suspended processing of the permit application pending receipt of more information on appellants’ proposed driveway plans and impervious-surface calculations for the entire lot. The county then rejected a revised landscaping plan.
After neighborhood complaints about the construction, the county issued a stop work order on the construction, requiring appellants either to remove impervious materials or to apply for an after-the-fact variance. Appellants applied again for a variance in August 2003, requesting “31.1% impervious surface coverage by construction [of] retaining walls, 2 patios and a driveway.” The CUP application was then deemed complete. The Board of Adjustment visited the site on September 8, 2003, and the county staff recommended approving the variance with certain conditions.
About a week later, the board held a hearing on the variance application. Appellants’ general contractor and landscaper were present and spoke in support of the variance. The contractor indicated that to help with the water runoff problem, the project would use engineered pervious pavers, even though they were not considered pervious by the county. The landscaper stated that “the landscaping was not figured in on [the impervious requirement] and it was an oversight on maybe everyone’s part.” A county land and resource management staff person indicated that the county had experienced problems with the Department of Natural Resources (DNR) on appellants’ earlier driveway proposal. A board member expressed that the DNR did not consider pervious pavers an exception to the impervious-surface requirement. The board tabled decisions on the variance and the CUP and made another site visit about two weeks later. The next day, county staff visited the site and calculated the existing and proposed impervious-surface area.
On October 7, the board met and again discussed the variance, with appellant Keiran O’Brien and a contractor’s representative present. Appellants reiterated the plan to use pervious pavers for the driveway. A county staff member presented measurements showing that the plans included impervious surfaces that exceeded the impervious-surface-area requirements and noted the DNR’s position on pervious pavers. The board denied the variance, issuing findings of fact that: (1) the applicant had a reasonable use of the property without the allowance of the variance; and the same variance had previously been denied; (2) the variance would alter the essential character of the locality because allowing increased impervious-surface area would have an impact on filtration and increase runoff; (3) the 25% impervious-surface rule was an established standard so that the variance was not necessary to secure for the applicants a right enjoyed by others in the area; and (4) applicants’ plight was created by them because they were fully aware of the requirements through the construction process.
The planning commission later held a meeting discussing the 25% impervious-surface requirement and the interrelationship of this issue with the variance request, and recommended denial of the CUP. The county board accepted the commission’s recommendation based on the 25% impervious requirement and denied the CUP.
Appellants petitioned for review of the variance denial to the district court. They argued against the inclusion in the record of four DNR documents expressing that agency’s position on pervious pavers and moved to supplement the record with additional expert testimony on the issue. The district court denied the motion, stating that it considered the record as submitted by the county to include the DNR documents. The district court affirmed the variance denial.
Appellants filed a writ of certiorari to this court on the CUP denial; that appeal was stayed pending the resolution of the variance issue in district court. After the variance matter was resolved and appealed, this court lifted the stay and ordered consolidation of the cases for appeal.
D E C I S I O N
county board of adjustment has “broad discretion to grant or deny variances,”
and this court’s review is limited to determining whether the exercise of that
discretion is reasonable. Kismet Investors, Inc. v. County of Benton,
617 N.W.2d 85, 90 (Minn. App. 2000), review
argue that the board of adjustment acted unreasonably in denying the request
for a variance because they met the requirements for a variance under the
both statutes, “hardship” requires that: (1) the property cannot be put to reasonable
use under conditions allowed by the zoning ordinance; (2) circumstances exist
unique to the property that were not created by the landowner; and (3) the
variance, if granted, will not change the essential character of the
locality. Minn. Stat. § 394.27, subd. 7;
Minn. Stat. § 462.357, subd. 6(2).
And both statutes specify that economic considerations alone shall not
constitute a hardship if a reasonable use for the property exists absent a
variance. Minn. Stat. § 462.357,
subd. 6(2). The relevant section of the
In denying the variance, the board found that: (1) the property could be put to a reasonable use without the variance; (2) the variance would alter the essential character of the property because increasing the 25% impervious-surface requirement would have an impact on filtration and increase runoff; (3) because the 25% impervious surface limitation is an established standard, the variance was not necessary to secure for appellants rights enjoyed by others in the same area; and (4) the landowners’ plight was created by them because they were aware of the requirements through the construction process.
We conclude that the board did not abuse its discretion in denying the variance, based on its application of the undue-hardship factors in the statute and ordinance. The property’s previous use as a residence, which appellants demolished to construct their new home, establishes that the property could be put to a reasonable use without the variance. The property’s location within a zoned shoreland residential district, with prescribed environmental controls, supports the reasonableness of the board’s finding that the variance would alter the essential character of the property because the variance would have an impact relating to filtration and increase surface-water runoff. Further, the board is correct that the 25% impervious-surface requirement is an established standard, so that the variance is not necessary to secure for appellants a right enjoyed by other landowners in the neighborhood.
Appellants argue that the board acted unreasonably by granting them a building permit and then not allowing them to complete construction in a reasonable manner. But the grant of a building permit does not presuppose acceptance of a variance from the impervious-surface requirement for the total lot area. Moreover, the 2002 building permit expressly stated that appellants were subject to the 25% impervious-surface requirement.
In addition, the record establishes that appellants first requested a variance from the impervious-surface-coverage limitations two days before their building permit was issued. That request was denied. A representative of appellants’ contractor testified before the board that he was aware the county did not consider pervious pavers as exempt from the impervious-surface-coverage limitations, and appellants’ landscaper testified that, by oversight, the landscape calculations were performed without the impervious-surface calculations. Thus, the evidence supports the board’s finding that appellants had notice of the impervious-surface-coverage limitations before and throughout their construction process.
also argue that granting a variance under the undue-hardship standard requires
only that the landowners desire to use their property in a reasonable manner
prohibited by ordinance, citing Nolan v.
City of Eden Prairie, 610 N.W.2d 697, 701 (Minn. App. 2000). But Nolan
involved the factually-distinguishable situation in which a city had
previously granted the landowners’ other variances, and the most recent
variance brought the property closer to compliance with conditions allowed by
also contend that, because the variance request was for an area rather than a
use variance, the board erred in not applying “practical difficulty” as an
alternate standard for granting the variance.
next argue that the board made its determination on an inadequate record, and
the district court abused its discretion in declining to augment the record
with further testimony. “[A] district
court should establish the scope and conduct of its review of a municipality’s
zoning decision by considering the nature, fairness and adequacy of the
proceeding at the local level and the adequacy of the factual and decisional
record of the local proceeding.” Swanson v. City of
Appellants maintain that the record is not clear and complete because the only evidence of the board’s two site visits is the meeting minutes, which were composed by a staff person opposed to the variance. But the minutes appropriately indicated what happened during the on-site visits, and appellants do not dispute that the transcripts of the two board meetings held after the site visits, when the board took testimony and voted on the application, accurately reflected those proceedings. Further, the board made formal findings contemporaneous with its decision to deny the variance. See id. (upholding the sufficiency of the record for review that consisted of statements by experts, written reports by city staff, and contemporaneous written findings by the city council in denying a subdivision application).
Appellants also challenge the district court’s inclusion in the record of four DNR documents: (1) an office memorandum on impervious surfaces in shoreland areas; (2) an office memorandum on pervious pavers; (3) a guidance document on the use of permeable pavement systems in shoreland areas; and (4) an e-mail from a DNR staff member to the land management staff in Douglas County. The office memorandum on pervious pavers stated the DNR’s recommendation that, while pervious pavers may have some benefit, the benefit or “pervious credit” that may be applied had not yet been determined, so that a variance should be required for their use on lots with existing 25% impervious-surface coverage. The guidance document states that while a “pavement surface may have high porosity (lots of pores or holes), . . . the system may still be relatively impermeable if the subbase is not properly designed and constructed” and that “[o]n degraded sites where 25% impervious is already exceeded, the retrofitting of permeable pavement systems may be of lesser value.”
maintain that the DNR documents were not personally reviewed by the board
members, but only by staff members, and that appellants were not given the
opportunity to rebut the documents with expert testimony. The transcript of the hearings does not
clearly reflect whether the board members personally reviewed the DNR
documents. But the documents reflect the
agency’s interpretation of its own regulation, which requires a 25%
impervious-surface lot coverage limitation in shoreland areas. See Minn.
R. 6120.3300, subp. 11(B)(1) (2003).
This agency interpretation is a proper subject for judicial notice. See
State v. Anderson, 302 Minn. 77, 80, 223 N.W.2d 789, 792 (Minn. 1974)
(stating that a district court must take judicial notice of Department of
Highway’s breath test regulation); see
also United States v. City of St. Paul, 258 F.3d 750, 753 (8th Cir. 2001)
(stating that Housing and Urban Development handbook, although not adopted by
administrative rule, was entitled to notice as the agency’s interpretation of its
own regulations and should be accepted by the court absent a showing that the handbook
was unreasonable or inconsistent with statutory authority). Courts generally defer to an agency’s
interpretation of its own regulations. See, e g.,
Appellants further claim that that the recommendations cannot provide sufficient evidence to support the board’s decision when the DNR did not visit the property or testify before the board. But the DNR’s failure to testify or visit the site does not make the board’s determination unreasonable when the DNR evidence was received for the purpose of examining general standards rather than making a site-specific determination for the property.
assert that the district court abused its discretion in denying their motion to
augment the record with further evidence on the characteristics of pervious
pavers. But the hearing transcripts
reflect that the board did not limit testimony offered by appellants or their
representatives. See Schwardt v. County of Watonwan, 656 N.W.2d 383, 388 (
Douglas County Zoning Ordinance states that in a residential shoreland
district, “[t]he total area of all buildings and other impervious surfaces
shall not cover more than twenty-five (25) percent of the lot area.”
the term “impervious surface” is not defined in the ordinance, it may be read
in multiple ways and is thus ambiguous. Therefore,
the term is susceptible to interpretation by this court. See Minn.
Stat. § 645.16 (2004) (allowing interpretation of an ambiguous statutory
provision); Chanhassen Estates Residents
Ass’n v. City of Chanhassen, 342 N.W.2d 335, 339 n.3 (
Appellants challenge the county
board’s denial of the CUP for the landscaping on the property. This court’s review of a governing authority’s
decision to deny a CUP is limited to whether the denial was unreasonable,
arbitrary, or capricious. Honn v. City of
We conclude that the record contains
an adequate legal and factual basis for the denial. In denying the CUP, the board of county
commissioners made a finding of “[p]roperty not being at 25% impervious.” We agree that this finding, by itself, states
a minimal basis for the board’s decision. See Honn,
331 N.W.2d at 416 (stating that although formal findings of fact are not
required, a governing body must reduce to writing the reasons for its decision
on a permit in “more than just a conclusory fashion”). But this finding reflects the board’s
consideration of the legal requirement of 25% impervious-surface area in
residential shoreland districts and the zoning code provision on the prevention
of soil erosion as factors in determining whether to grant a CUP in a shoreland
A revised version of the Douglas County Zoning Ordinance was recorded on
September 11, 2003, and the ordinance has also been more recently amended.
 The currently effective zoning ordinance defines
“impervious surface” as “[a]ny surface not able to absorb liquid. Examples of, but not limited to, concrete,
bituminous, tar, roof top, wood decking and modular stone.”