This opinion will be unpublished and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
Thomas Borresch, et al.,
Filed May 10, 2006
Stearns County District Court
File No. C6-04-1736
Frank J. Kundrat, Kundrat Law
Richard J. Kruger, Carlson &
Considered and decided by Willis, Presiding Judge; Kalitowski, Judge; and Stoneburner, Judge.
U N P U B L I S H E D O P I N I O N
This is an appeal from the district court’s reversal of appellant county’s denial of respondents’ application for a zoning variance. Because the reconstruction work that respondents propose for their boathouse requires a zoning variance and because respondents fail to show that a zoning variance is justified, we reverse.
Sometime before January 9, 2004,
respondents Thomas and Rhonda Borresch began construction work on an existing
boathouse and woodshed and on a sewage-treatment system, all of which are
located on their property on
In March 2004, the Board of
Adjustment (BOA) of Stearns County held a public hearing at which it considered
the Borresches’ application for a variance from the requirements of sections
5.1.2C(3), 6.2.1A, and 10.2.11E of the Stearns County Land Use and Zoning
Ordinance in order to alter their boathouse.
The BOA denied the Borresches’ application. The Borresches appealed to the district
court, arguing that they want only to “repair the existing boathouse” by
“fixing the roof, re-siding and straightening out the outside walls that were
misshapen, and restoring the boathouse to its original dimensions”; that these
activities do not constitute an addition, alteration, or structural alteration,
all of which are prohibited by the zoning ordinance; and that, therefore, this
work does not require a zoning variance.
district court concluded that the Borresches “were not required to request a
variance prior to making the repairs to their boathouse” and that the BOA “did
not have the authority to prohibit the repairs made to the boathouse,” and
reversed the BOA’s decision.
D E C I S I O N
County claims that the Borresches “asserted for the first time in their appeal
to the district court that they did not need a zoning variance for the work
that they were performing on their boathouse” and that because the Borresches
did not raise this argument before the BOA, “[t]he district court should never
have even considered [it].” We review a
local zoning authority’s decisions independently from a district court’s review
of the same record. See City of Barnum v. County
of Carlton, 394 N.W.2d 246, 248 (Minn. App. 1986), review denied (Minn. Dec. 17, 1986). Therefore, we construe
Review of the transcript of the BOA hearing shows that, although the Borresches, who appeared pro se at the hearing, did not specifically argue that the work they intended to do on the boathouse did not require a zoning variance, most of the discussion at the hearing concerned the nature of the work that the Borresches intended to do and why that work required that they first obtain a zoning variance. Based on the record, we conclude that the issue of whether a zoning variance was required was raised, discussed, and decided at the BOA hearing. Therefore, we will consider the Borresches’ argument that a zoning variance is not required for the proposed reconstruction work on their boathouse.
Appellate review of zoning decisions is limited to
determining whether the local zoning authority’s action was reasonable. Honn v.
The interpretation and application
of a zoning ordinance are questions of law.
Frank’s Nursery Sales, Inc., v.
City of Roseville, 295 N.W.2d 604, 608 (
party disputes that sections 5.1.2C(3), 6.2.1A, and 10.2.11E of the Stearns
County Land Use and Zoning Ordinance apply to the Borresches’ boathouse because
(1) it is a “boathouse” as defined by the ordinance; (2) it is a
nonconforming structure because it is on a tract of land with more than two existing
accessory structures; and (3) it is in the “shore impact zone” of the
“Shoreland Overlay District” of Stearns County.
Under section 5.1.2C(3), “[a]ny addition or alteration to a
nonconforming structure that is located wholly or partly within the shore
impact zone shall not be allowed.” Under
section 10.2.11E, “[b]oathouses and additions or alterations thereto are
prohibited.” But under section
5.1.2A(3), “[n]ormal maintenance, including non-structural maintenance and repair,
except structural alteration of a nonconforming structure, is permitted.” The ordinance defines “alteration” as “[a]n
increase in the height or depth of a building.”
Here, the record suggests that the Borresches intend essentially to build a new building around the outside of their existing boathouse, necessarily increasing its depth. The proposed work also includes placing a new roof over the existing one, and Knafla testified at the BOA hearing that the rafters that the Borresches proposed to add would increase the height of the boathouse. Because the Borresches’ proposed reconstruction would result in an increase in the height and the depth of the boathouse, it constitutes an “alteration.” The record also shows that the Borresches’ proposed reconstruction activities, the “beefing up” of rafters or the use of trusses, the “shoring up” of the outer walls of the boathouse with buffalo board, and the installation of steel siding on those walls, constitute “structural alterations” because they involve a “change in the supporting members of a building.” To the extent that “change” means “to cause to be different,” the intended work on the boathouse changes the supporting walls and rafters of the boathouse by adding materials to these supporting members and thereby making them stronger, straighter, and, presumably, longer-lasting. See The American Heritage Dictionary 319 (3d ed. 1992) (defining “change” as “to cause to be different”).
conclude that the proposed work on the boathouse requires a variance from the
terms of the Stearns County Land Use and Zoning Ordinance. This conclusion is consistent with the
underlying policy goals of the zoning ordinance, including: (1) “[c]onserving
natural and scenic areas of the County”; (2) “[c]onserving natural resources
and open space”; and (3) “[p]roviding official controls to implement the goals
and policies in the Stearns County Comprehensive Plan.”
The idea of the ordinance is that [nonconforming structures] will go away. That eventually, we’ll have shorelines that are clear back a hundred feet. O.K., there’s a lot of houses that aren’t a hundred feet away from the shoreline right now. They are not allowed to improve or change. They’ll go to dilapidation and then they’ll be gone. That’s this concept. It’ll take a hundred years, but that [is] the concept. That’s what people wanted and that’s what we have in place now.
Interpreting the ordinance to prohibit the “shoring up” and re-siding of the outer walls of the boathouse and the strengthening of rafters is consistent with the policy goals of the ordinance as the BOA members describe them because the changes to the Borresches’ boathouse would likely make it last longer.
The Borresches also argue that the proposed reconstruction is not “considered to be an addition to a nonconforming structure.” But because we have concluded that the reconstruction involves alterations and structural alterations, we need not determine whether it also constitutes an addition under the zoning ordinance.
Denial of Zoning-Variance Application
local zoning authority has broad discretion in denying variances. Kismet
Investors, Inc., v. County of Benton, 617 N.W.2d 85, 90 (Minn. App. 2000), review denied (
local zoning authority has “exclusive power to order the issuance of variances
from the terms of any official control including restrictions placed on
A landowner applying for a variance has the burden of showing that the variance is justified. Kismet Investors, Inc., 617 N.W.2d at 90. At the BOA hearing, Thomas Borresch testified that without a variance he could not continue to use the boathouse for the storage of boats because its roof leaked and that he needs to continue to use the boathouse to store his boats because his wife’s parents, who use the home and boathouse in the summer months, would not be able to transport a boat to the water from a structure that is farther from the lake. The BOA made findings that (1) the issuance of the requested variance would not be in keeping with the spirit and intent of the ordinance or comprehensive plan, which allow for the Borresches to maintain but not alter their boathouse; (2) there were no circumstances unique to the property that made compliance with the ordinance difficult or impossible; and (3) the Borresches were not deprived of a reasonable use of the property as that use relates to the ordinance because they could still use the boathouse for the storage of boats. The record shows that the county would allow the Borresches to re-shingle the existing boathouse roof. Because the record supports the BOA’s findings and because the Borresches fail to show that a zoning variance is justified, we conclude that the BOA’s denial of the variance was reasonable, and we reverse the district court’s order.