This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).








Keiran W. O’Brien, et al.,

Relators (A03-1915), Appellants (A05-444),




Douglas County Board of Commissioners,



Filed December 6, 2005


Hudson, Judge


Douglas County Board of Commissioners

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 U.S. Trust Building, 730 Second Avenue South, Minneapolis, Minnesota 55402 (for respondent)


            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 Lake Darling in Douglas County in a zoned residential shoreland district.  In order to assist with filtration and water runoff, the Douglas County zoning ordinance requires a variance for construction resulting in more than 25% impervious-surface coverage.  Appellants anticipated demolishing the existing home and constructing a new residence, along with a garage and landscaping.  Accordingly, in August 2002 they applied for an impervious-surface lot coverage variance of 30.1%.  The Douglas County Board of Adjustment issued an order denying the variance in September 2002.  Two days later, appellants applied for and received a building permit for construction on the lot.  The permit contained the following notation:



            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.



A 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 denied (Minn. Nov. 15, 2000).  “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 and conclusions.”  Id.; see also VanLandschoot v. City of Mendota Heights, 336 N.W.2d 503, 508 (Minn. 1983) (stating that an appellate court’s review of a zoning authority’s decision is “independent of the findings and conclusions of the district court”).  In determining reasonableness, this court is guided by standards set forth in the relevant county ordinance, but a board’s authority to grant variances “may not exceed the power granted by statute.”  Kismet, 617 N.W.2d at 90.

Appellants 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 Douglas County zoning code.  County boards of adjustment have the exclusive power to grant variances from their zoning ordinances.  Minn. Stat. § 394.27, subd. 7 (2004).  The board may grant a variance only when the variance is in harmony with the general purposes and intent of zoning ordinances and when strict enforcement of those ordinances will cause “practical difficulties or particular hardship.”  Id.  The municipality variance statute allows variances only on a showing of “undue hardship.”  See Minn. Stat. § 462.357, subd. 6(2) (2004). 

Under 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 Douglas County zoning ordinance states the same requirements and also includes a ground that the variance is necessary to secure for the applicant a right or rights enjoyed by other owners in the same area.  Douglas County, Minn., Zoning Ordinance § VI(H)(1)(a) (2002).[1]  The ordinance reiterates the necessity for “practical difficulties or particular hardships” in granting a variance.  Id.  The property owner applying for a variance carries a “heavy burden” to justify granting the variance.  Luger v. City of Burnsville, 295 N.W.2d 609, 612 (Minn. 1980).  The property owner must satisfy “each part of the three-part [undue-hardship] test.”  Graham v. Itasca County Planning Comm’n, 601 N.W.2d 461, 467 (Minn. App. 1999). 

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. 

Appellants 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 official controls. 701–02.  And, even if appellants were mistaken in their interpretation of the ordinance, that belief would not constitute a hardship “because a property owner’s beliefs are not circumstances unique to the property.”  Graham, 601 N.W.2d at 468. 

Appellants 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.  Minnesota courts have drawn a distinction between use variances and area variances.  Kismet, 617 N.W.2d at 90.  Use variances allow a use of the property prohibited under a zoning ordinance; area variances control density, height, setback and other requirements for uses permitted by the ordinance.  Id.  Minnesota precedent suggests that practical difficulty may provide a separate basis for granting an area variance.  See Merriam Park Cmty. Council, Inc. v. McDonough, 297 Minn. 285, 291–92, 210 N.W.2d 416, 420 (1973) (applying the practical-difficulties standard in affirming the grant of a variance from area, setback, and density requirements), overruled on other grounds by Nw. Coll. v. City of Arden Hills, 281 N.W.2d 865 (Minn. 1979); see generally, Kismet, 617 N.W.2d at 91–92 (interpreting, in dicta, practical difficulty as the standard intended to apply to area variances).  But case law from other jurisdictions indicates that the practical-difficulties standard, as well as the undue-hardship standard, must refer to characteristics of the land in question, rather than conditions personal to the owner of the land.  See Ogawa v. City of Des Peres, 745 S.W.2d 238, 242–43 (Mo. Ct. App. 1987) (stating that the practical-difficulty or undue-hardship standard “does not refer to conditions personal to the owner of the land in question but rather refers to the conditions especially affecting the lot in question”); Ivancovich v. City of Tucson Bd. of Adjustment, 529 P.2d 242, 249 (Ariz. Ct. App. 1974) (rejecting the financial considerations of a landowner as the sole factor in applying the undue-hardship or practical-difficulties standard in an area variance case).  The prior conforming use of appellants’ lot in a residential-shoreland district shows that the characteristics of the land did not demonstrate practical difficulty in complying with the applicable zoning ordinance.


Appellants 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 Bloomington, 421 N.W.2d 307, 312–13 (Minn. 1988).  Review should be on the record if the proceeding was fair and the record clear and complete. 313. The record is likely to be clear and complete if the municipality “has proposed formal findings contemporaneously with its decision and there is an accurate verbatim transcript of the proceedings.”  Id.

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.” 

Appellants 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., Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 465 (Minn. 2002).  Thus, the district court did not err in determining the record to include the documents as evidence of the DNR’s interpretation of its regulations.

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.

Appellants 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 (Minn. 2003) (upholding the decision to grant a conditional use permit when the county board heard all proffered testimony).  The record shows that appellants’ landscaper and contractor’s representative both spoke at the September board meeting in favor of appellants’ plans and that appellant Keiran O’Brien and the contractor also attended the October board meeting.  Therefore, appellants had sufficient opportunity to present their position before the board, and the district court did not abuse its discretion in denying the motion to augment the record.


            Appellants contend that the district court incorrectly based its denial of the variance on their failure to satisfy the impervious-surface provisions of the zoning ordinance because their construction plans contemplated the use of engineered pervious pavers.  They contend that the board erred in interpreting the county ordinance on impervious-surface coverage to comport with the DNR recommendations against use of those pavers.  The interpretation of an ordinance is a question of law, subject to de novo review.  Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn. 1980).  Three general rules of constructionguide a court’s interpretation of zoning ordinances: (1) the ordinances are given their plain and ordinary meaning; (2) they should be construed strictly against a municipality and in favor of a landowner; and (3) they must be considered in light of their underlying policy goals.  Id. at 608–09.  

The 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.”  Douglas County, Minn., Zoning Ordinance § III(c)(9)(e)(1) (2002).  Appellants argue that the definition of “impervious surface” in the currently effective zoning ordinance differs from the definition recommended by the DNR, so that the county misinterpreted its ordinance by adopting the DNR’s position that pervious pavers are actually impervious surfaces.[2]  But when appellants applied for the variance in August 2003, the then-effective version of the ordinance did not define “impervious surfaces.”  SeeDouglas County, Minn., Zoning Ordinance § VII (Definitions) (2002). 

Because 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 (Minn. 1984) (stating that the rules of statutory construction apply when construing ordinances).  Application of the second Frank’s Nursery factor—reading the ordinance in favor of the landowner—weighs in favor of appellants, but reading the ordinance in that fashion would read it in a manner contrary to Frank’s Nursery’s third factor, which requires effecting the ordinance’s underlying policy goals.  This fact supports the county’s interpretation when the ordinance is read as a whole.  See Van Asperen v. Darling Olds, Inc., 254 Minn. 62, 73–74, 93 N.W.2d 690, 698 (1958) (stating that a statute must be read as a whole to harmonize all of its parts).  The stated purpose of the residential-shoreland-district section of the ordinance is to “protect and regulate the use and development of the shorelands of public waters” in order to preserve and enhance surface-water quality, conserve shoreland natural and environmental values, and assure wise use of waters and related land resources.  Douglas County, Minn., Zoning Ordinance § III (C)(1) (2002).  The county’s inclusion of pervious pavers in the definition of impervious surfaces reflects an internally consistent interpretation of the impervious-surface requirement with the corresponding policy section on shoreland management, which favors water runoff and percolation standards in shoreland areas deemed sensitive to erosion and environmental degradation.  Courts in other jurisdictions have cited ordinances with language reflecting this policy.  See, e.g., Bolt v. City of Lansing, 587 N.W.2d 264, 267 (Mich. 1998) (citing an ordinance stating that “[i]mpervious land area includes, but is not limited to, surface areas covered by buildings, porches, patios, parking lots, driveways, walkways, and other structure” and that generally, “all non-vegetative land areas shall be considered impervious”).  Further, state regulations require that a 25% impervious-surface lot-coverage limitation be incorporated in local shoreland management controls.  Minn. R. 6120.3300, subp. 11(B)(1) (2003); see also Minn. R. 6120.2600 (2003) (stating purpose of shoreland management standards to preserve and enhance the quality of surface waters and conserve the natural environment).  Therefore, we conclude that the board did not err in interpreting the impervious-surface requirement in the zoning ordinance to include pervious pavers as impervious surfaces.  



            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 Coon Rapids, 313 N.W.2d 409, 416–17 (Minn. 1981).  The denial of a CUP based on a legally sufficient reason and supported by a factual basis is not unreasonable, arbitrary, or capricious.  C.R. Invs., Inc. v. Vill. of Shoreview, 304 N.W.2d 320, 325 (Minn. 1981).  The permit applicant bears the burden of showing the appellate court that the reasons for the CUP denial are impermissible.  Hubbard Broad., Inc. v. City of Afton, 323 N.W.2d 757, 763 (Minn. 1982).     

            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 district.  SeeDouglas County, Minn., Ordinance § VI (G)(1)(b)(1)(a) (2002).  The board also reviewed evidence indicating that the landscaping plan, as proposed without modification, would increase the impervious surface area of the lot and increase runoff in the environmentally-sensitive shoreland area.  Thus, the board’s denial of the CUP was not arbitrary and capricious, and we affirm.  


[1] A revised version of the Douglas County Zoning Ordinance was recorded on September 11, 2003, and the ordinance has also been more recently amended.  SeeDouglas County, Minn., Zoning Ordinance (2005).  Because the record reflects that the board considered the variance application under the version of the ordinance in effect at the time the application was filed in August 2003, and because applying a later version would affect the rights of the county on appeal, we apply the earlier version in this appeal.  See Interstate Power Co. v. Nobles County Bd. of Comm’rs, 617 N.W.2d 566, 575 (Minn. 2000) (stating that appellate courts are to apply law in effect at time of judgment, except “when rights affected by the amended law were vested before the change in the law”).  

[2] 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.”  Douglas County, Minn., Zoning Ordinance § VII (Definitions) (2005).