This opinion will be unpublished and

may not be cited except as provided by

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






In the Matter of: Dan Holzgrove’s application for a variance to

construct a dwelling on a non-buildable Lot as defined in

Section 17, Subdivision 9 of the Becker County Zoning Ordinance


Filed April 11, 2006


Stoneburner, Judge


Becker County District Court

File No. C904953


Steven R. Peloquin, Peloquin & Minge, P.A., 15 North Main, Box 277, New York Mills, MN 56567 (for appellants)


Patrick B. Kenney, 714 Lake Avenue, Box 1786, Detroit Lakes, MN 56502 (for respondent Holzgrove)


Michael T. Rengel, Nicholas J. Heydt, Pemberton, Sorlie, Rufer & Kershner, P.L.L.P., 110 North Mill Street, Box 866, Fergus Falls, MN 56538-0866 (for respondent Becker County)


            Considered and decided by Kalitowski, Presiding Judge; Willis, Judge; and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N




            On appeal from summary judgment affirming the county’s grant of a building permit in this zoning dispute, appellants, who opposed the permit, argue that neither the record nor the law supports the county’s determination that the lot in question is a buildable lot-of-record under the relevant zoning ordinance.  Because the plain language of the zoning ordinance supports the county’s conclusion that the lot in question is a buildable lot, we affirm.



            Becker County adopted its first zoning ordinance in 1971.  The ordinance contained a requirement that to be buildable, lakeshore lots must have a minimum of 100’ of lakeshore frontage.  The 1971 ordinance also contained a grandfather clause, which provided that all lots, “the deed to which has been recorded . . . prior to the passage of this Ordinance shall be considered to be . . . a legally buildable lot even though such lot     . . . may not conform to the minimum requirements of this Ordinance.”  “Lot” was defined in the 1971 ordinance as:

One unit of a recorded plat or subdivision occupied or to be occupied by a building and its accessory buildings, and includes as a minimum such open spaces as are required under this Ordinance and having frontage on a public street.


Town and Country Estates subdivision was created by plat recorded on June 12, 1973.  The subdivision is long and narrow, consisting of 17 lots with approximately 100’ of lakeshore frontage each, plus Outlot A, with 70’ of lakeshore frontage.  The lots lie along the shore of Lake Floyd.  Outlot A is immediately south of Lot 17 and is the most southerly parcel in the subdivision.  Outlot A was not a buildable lot under the 1971 zoning ordinance.

The county first amended its zoning code in 1980.  The definition of “lot” was not changed, but the grandfather clause of the zoning ordinance was amended to provide:

All lots which are a part of a subdivision legally recorded with the County Recorder or the Registrar of Titles . . . prior to March 2, 1976, and in separate ownership from abutting lands, shall be considered to be Lots of Record and shall thereby be considered a legally buildable lot even though such lot may not conform to the minimum requirements of this Ordinance.


            Under the current zoning ordinance, “lot” is defined as “[a] parcel of land in separate ownership from all surrounding parcels.”  The grandfather clause of the current ordinance provides that a lot that was a buildable lot before the enactment of the current ordinance is a lot-of-record and is a buildable lot even though it does not meet the requirements of the current ordinance, but is subject to a merger provision that is unchanged since the 1980 amendment and provides in relevant part:

When adjacent substandard parcels are in the same ownership, they shall be joined into one parcel and shall no longer be allowed as individual building sites.


If, in a group of two or more contiguous lots under the same ownership, any individual lot that is not a buildable lot shall not be considered as a separate parcel of land for the purposes of sale or development, the lot shall be combined with the one or more contiguous lots so they equal one or more parcels of land, each meeting the requirements for building.


A 40-acre lot (the back lot) is located outside of the Town and Country subdivision, on the west side of a street and cul-de-sac that sever the subdivision from the back lot.  A March 2003 survey shows that Outlot A and the back lot have a 4.7’ common boundary on the south side of the cul-de-sac.  Outlot A and the back lot were in common ownership prior to the May 2003 sale of Outlot A to respondent Holzgrove.

In June 2003, Holzgrove applied for a permit to build a dwelling on Outlot A.  The Planning and Zoning Department granted the permit but later revoked it, concluding that Outlot A and the back lot are contiguous and were in common ownership at relevant times, preventing Outlot A from becoming a separate buildable lot under the merger provision of the 1980 amendment.  Holzgrove appealed that decision to the Becker County Board of Adjustment (board).  The board conducted a public hearing. 

According to board minutes in the record, appellants submitted evidence to show that the original owners and platters of the subdivision intended that Outlot A was to be used for access to the lake from the back lot, and that the lot was never intended for use as a residential building site because it did not meet the 1971 minimum requirements for a buildable lot. 

Holzgrove argued that Outlot A became a buildable lot under the 1980 amendment to the grandfather clause and that Outlot A and the back lot are not contiguous as demonstrated by the original plat, which does not show any common boundary.  Holzgrove further argued that even if there is a 4.7’ common boundary, the lots are not contiguous because “contiguous,” according to a Webster’s dictionary, implies having contact on all or most of one side. 

After the public hearing, the board granted the building permit based on its determination that Outlot A is a legally buildable lot-of-record and is not contiguous with the back lot.  Appellants sought review in the district court, which granted summary judgment to respondents, concluding that there is adequate evidence on the record to uphold the board’s findings that Outlot A is a lot-of-record and is not contiguous with the back lot.  This appeal followed.



I.                   Standard of Review


Appellants do not dispute the district court’s conclusions that there are no genuine issues of material fact in this case, but argue that the district court erred in its application of the law.  Appellants assert that Outlot A was not made a buildable lot by the 1980 amendments to the zoning code, in any event is contiguous with the back lot, and was in common ownership with the back lot, which precludes Outlot A from being a buildable lot separate from the backlot.[1]

We 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, 77 (Minn. 2002).  This court reviews the interpretation of an existing municipal zoning ordinance de novo as a question of law.  Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn. 1980); see also Buss v. Johnson, 624 N.W.2d 781, 784 (Minn. App. 2001).  “Thus, where the question is whether an ordinance is applicable to certain facts, the determination of those facts is for the governmental authority, but the manner of applying

the ordinance to the facts is for the court.”  Frank’s Nursery Sales, Inc., 295 N.W.2d at 608.  Also, this court, in reviewing the zoning authority’s decision, examines the record “independent of the findings and conclusions of the district court.”  Castle Design & Dev. Co. v. City of Lake Elmo, 396 N.W.2d 578, 581 (Minn. App. 1986).

Three rules of construction are applied in interpreting a zoning ordinance.  Frank’s Nursery Sales, Inc., 295 N.W.2d at 608.  Zoning ordinances: (1) are given their plain and ordinary meaning; (2) should be construed strictly against a municipality and in favor of a landowner; and (3) must be considered in light of their underlying policy goals. 608-09.  Additionally, “rules that govern the construction of statutes are applicable to the construction of ordinances.”  Smith v. Barry, 219 Minn. 182, 187, 17 N.W.2d 324, 327 (1944).  This includes the rule that a statute should be construed as a whole to harmonize and give effect to all of its parts.  Id.  “Once [zoning] ordinances are enacted, less weight is given to the municipality’s legal interpretations of its ordinances than on questions of fact.”  Odell v. City of Eagan, 348 N.W.2d 792, 796 (Minn. App. 1984) (citing Frank’s Nursery Sales, Inc., 295 N.W.2d at 604).

II.        Lot-of-record

            Appellants first argue that Outlot A did not meet the relevant definition of “lot” (“[o]ne unit of a recorded plat or subdivision occupied or to be occupied by a building      . . .”) and therefore was not made buildable by the grandfather clause in the 1980 amendment, which applied only to “[a]ll lots which are a part of a subdivision legally recorded” prior to March 2, 1976.  Appellant’s argument has some merit, but a strict application of this definition would make the grandfather clause, which purports to make some substandard lots buildable, meaningless because the clause would apply only to lots already deemed buildable.  Construing the grandfather clause in light of its goal of making some substandard lots buildable, we conclude that the use of the term “lots” in the grandfather clause cannot be limited to those already deemed to be buildable.  Therefore the board properly determined that the 1980 amendments to the zoning code permitted any lot which was part of a subdivision legally recorded before March 2, 1976, to be a “buildable lot,” regardless of the lot’s nonconformance with the current or past zoning standards.      Because Outlot A was platted and recorded before March 2, 1976, it was, by the plain, unambiguous wording of the 1980 grandfather clause, made a buildable lot of record even though it was not a buildable lot at the time the subdivision plat was recorded in 1971. 

Appellants contend that the board’s interpretation of the 1980 amendment is incorrect for two reasons: (1) because it conflicts with the underlying policy of the county shoreland management ordinance and a 1969 state law on shoreland management and (2) because Outlot A was never intended to be used as a buildable lot.  “[A]n ordinance must not be repugnant to, but in harmony with, the laws enacted by the Legislature for the government of the state.”  Mangold Midwest Co. v. Vill. of Richfield, 274 Minn. 347, 350-51, 143 N.W.2d 813, 816 (1966).  “[I]t has been said that conflict exists where the ordinance permits what the statute forbids.”  St. Paul Citizens for Human Rights v. City Council of the City of Saint Paul, 289 N.W.2d 402, 406 (Minn. 1979).

The 1969 state law to which appellants refer provided that:

Before July 1, 1970, the commissioner of natural resources shall promulgate . . . model standards and criteria for the subdivision, use, and development of shoreland in unincorporated areas, including . . . (a) The area of a lot and length of water frontage suitable for a building site . . . .


Minn. Stat. § 105.485, subd. 3 (1969) (now codified in Chapter 103F).

This statute also provided for the DNR commissioner to adopt the model standards applicable to any county that failed to adopt a shoreland conservation ordinance by July 1, 1972, and that “[t]he ordinance shall be enforced as provided in section 394.37.”  Id., subd. 4; see also Schalow v. Mason, 357 N.W.2d 150, 151 (Minn. App. 1984) (“Each county must have a shoreland conservation ordinance that meets the minimum standards established by Minn. Stat. § 105.485, subd. 3 (1982) [now codified in Chapter 103F]”).  Becker County complied with the statute by adopting the 1971 zoning ordinance that included the minimum shoreline standards promulgated by the DNR Commissioner.          Appellants correctly note that there is some tension between the plain language of the 1980 amendment and the DNR standards required by the state law.  The plain language of the 1980 ordinance delays, as to some lots, application of the standards which were required by the state law to be adopted and enforced by July 1, 1972, by providing that any lot recorded before March 2, 1976, would be a lot-of-record despite nonconformance with those standards.  But while the state statute and the rules clearly direct that counties must have standards governing shoreland development, the statute does not forbid counties from providing relief from the new standards to landowners through a grandfather clause.  There is no clear express or implied statement in the statute that prohibits counties from exercising the same measure of control and discretion regarding zoning in shoreland areas as counties are authorized to exercise in zoning matters generally.  See generally Minn. Stat. § 394.21 to .30 (2004) (providing authority for local county commissions with powers to adopt and amend by ordinance, official controls related to zoning for health, safety and public welfare.)  This is not a situation in which the ordinance and statute contain terms that are irreconcilable or in which the ordinance permits what the statute forbids.  See Buss, 624 N.W.2d at 784 (describing when a conflict renders an ordinance invalid).

Appellants argue that the only logical interpretation of the 1980 amendment is that it was intended to exempt any lot recorded before March 2, 1976, from any new standards first set forth in the 1980 ordinance, not to exempt nonconforming lots from the requirements of the 1971 ordinance.  See Dedering v. Johnson, 307 Minn. 313, 320, 239 N.W.2d 913, 918 (1976) (providing that purpose of grandfather clauses in zoning ordinances is “to protect persons who acquire property prior to the adoption of the zoning ordinance from being deprived of the value of their property,” and citing 1 Rathkopf, The Law of Zoning and Planning 32-1 (3d ed. 1974)).  Owners who purchased or platted lots after 1971 would have done so in the context of the existing 1971 ordinance providing for standard and substandard lot sizes.  But appellants’ interpretation ignores the plain language of the 1980 amendment and does not explain why the 1980 amendment drafters did not extend grandfather rights to lots recorded after March 2, 1976, but before the effective date of the amendment.  As noted above, we conclude that the board properly determined that the 1980 amendment means what it says and provides a grandfather clause for any lot recorded before March 2, 1976.  See Odell, 348 N.W.2d at 797 (stating that court applies least restrictive interpretation of ordinance, protecting rights of property owner).

Appellants also urge reversal based on information submitted from the original developer and neighbors regarding the original intended use of Outlot A at the time the subdivision was platted.  But the platting documents did not contain any restrictions on the use of Outlot A.  Furthermore, even if appellants could produce sufficient evidence of a private restriction on the use of Outlot A, the zoning board of adjustment is not the proper venue in which to seek enforcement of a private restriction .  See id. at 787 (stating that “[t]he restrictive covenants [prohibiting lots in subdivision of less than one acre in size, urged as a basis for denial of a preliminary plat application seeking to split a lot into two lots of less than one acre each] are private matters to be resolved by the parties to the covenant, and not the city.”); see also Good Value Homes, Inc. v. City of Eagan, 410 N.W.2d 345, 348 (Minn. App. 1987) (holding that when proposed plat otherwise complied with subdivision ordinance standards, previous developer’s representations in marketing materials to home purchasers that the particular outlot sought to be developed would remain open space was a “legally insufficient” basis to deny subsequent developer’s proposed plat to add new dwellings to outlot; nor was a contract between the previous developer and the city, that original developer would not develop more than a certain number of homes in the plat, a sufficient basis to deny proposal when subsequent developer was not a signatory to the original developer’s contract and had no actual or constructive knowledge of contract at time of its purchase).

III.             Contiguous

            The 1980 Ordinance does not define “contiguous” or “adjacent.”  At the public hearing, Holzgrove argued that the board should use a Webster’s dictionary definition of “contiguous” as “having contact on all or most of one side” to determine that Outlot A and the back lot are not contiguous.  Holzgrove also pointed out that the original plat of the subdivision does not show any common boundary between Outlot A and the back lot.  The board relied on the definition of “contiguous” advanced by Holzgrove and determined that, whether using the original plat or the 2003 survey, Outlot A and the back lot are not contiguous under the definition of “having contact on all or most of one side.”

            Although appellants did not object to Holzgrove’s proposed definition of “contiguous” at the public hearing, they now assert that “contiguous” is synonymous with “adjacent” and argue that lots closely connected without unrelated intervening objects are “adjoining” and therefore “contiguous”; precluding Outlot A from becoming a buildable lot.  Appellants rely on mechanic’s lien cases in which the terms “adjoining” and “contiguous” are used interchangeably and which hold that for purposes of the mechanic’s-lien law, lots closely connected without unrelated intervening objects were adjoining.  See Lax v. Peterson, 44 N.W. 3, 4 (Minn. 1889); Automated Bldg. Components, Inc. v. New Horizon Homes, Inc., 514 N.W. 2d 826, 830 (Minn. App. 1994), review denied (Minn. June 15, 1994).

Respondents point out that the 1980 Ordinance provides that “[w]hen adjacent substandard parcels are in the same ownership they shall be joined into one parcel and shall no longer be allowed as individual building sites” and argue that the use of “adjacent” in this section and “contiguous” in the separate section at issue indicates that the terms, as used in the 1980 Ordinance, are not synonymous.  Respondents argue that the cases relied on by appellants are distinguishable because in those cases, unlike the present case, the terms adjacent and contiguous were used interchangeably. 

            Holzgrove also argues that in determining the boundary between Outlot A and the back lot, the board was restricted to an examination of the plat of the subdivision that was approved by the county and filed for record and asserts that the plat does not show any common boundary between the lots.  Holzgrove relies on Dittrich v. UBL, 216 Minn. 396, 13 N.W.2d 384 (Minn. 1944), in which the supreme court held that if lands are granted according to an official plat of the survey of such lands, the plat itself, together with its descriptions and landmarks, become part of the grant or deed and such landmarks are conclusive evidence of the location of the property lines.  The supreme court rejected a later survey stating:

Resurveys for the lawful purpose of determining the lines of an old survey and plat are generally very unreliable as evidence of the true lines.  The fact, generally known and quite apparent in the records of courts, is that two consecutive surveys by different surveyors seldom, if ever, agree; and the greater number of surveys, the greater number of differences and disagreements will occur.  When two surveys disagree, the correct one cannot be determined by still another survey.  It follows that resurveys are of very little use in such a case as this, except to confuse it.


Id. at 405, 13 N.W.2d at 390.

            Even if the lots have a common 4.7-foot boundary, we conclude that the board’s construction of the term “contiguous” is not, as a matter of law, erroneous.  We further note that it is apparent from the record that the county did not have any evidence or argument that the lots were contiguous prior to the sale of Outlot A to Holzgrove.  By the time any evidence of a common boundary was presented to the county, the lots were no longer in common ownership, a requirement for triggering the merger clause.


[1] At oral argument on appeal, appellants advanced the new argument that an “outlot” could not be considered a “lot.”  Because this argument was not briefed, we decline to address it.  See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (stating that issues not briefed on appeal are waived).