This opinion will be unpublished and

may not be cited except as provided by

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






Dean Croat Construction, Inc.,


Stearns County Board of Commissioners,


Filed July 11, 2006

Reversed and remanded

Minge, Judge


Stearns County Board of Commissioners

Resolution No. 05-74



Neil C. Franz, Neils, Franz & Chirhart, P.A., 1011 North Second Street, P.O. Box 307, St. Cloud, MN 56302 (for relator)


Joseph J. Langel, Jennifer J. Kruckeberg, Ratwik, Roszak & Maloney, P.A., 300 U.S. Trust Building, 730 Second Avenue South, Minneapolis, MN 55402 (for respondent)


            Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Minge, Judge.

U N P U B L I S H E D  O P I N I O N

MINGE, Judge

            Relator brings a certiorari appeal from the Stearns County Board of Commissioners’ refusal to approve his preliminary plat.  Because relator had obtained a lot-size variance from the Board of Adjustment, the Board of Commissioners exceeded its authority when it denied the plat because of lot-size concerns.  Because the record before us does not support other bases for denial, we reverse and remand to the Board for approval of relator’s preliminary plat.



            Relator Dean Croat Construction, Inc. (Croat) purchased a 156,000-square-foot parcel of land in Lynden Township, Stearns County, Minnesota.  The parcel is located within the Stearns County Shoreland Overlay District on Long Lake, which is classified as a Natural Environment lake.  According to the zoning ordinance, each unsewered Natural Environment lake parcel must have a minimum of 80,000 square feet of area.  Stearns County, Minn., Land Use and Zoning Ordinance 209 § 10.2.B (2000).  Therefore, Croat needed at least 160,000 square feet before he could divide his parcel. 

            Desiring to subdivide but lacking sufficient area, Croat applied to the Stearns County Board of Adjustment (BOA) for a lot-size variance.  After a public hearing, the BOA granted Croat the lot-size variance that would allow Croat to subdivide the parcel.  The two resulting lots would each be less than 80,000 square feet.  Furthermore, because of a mandatory 33-foot-wide right-of-way dedication running the length of each parcel, the final parcel sizes would be substantially smaller; one parcel would be 41,000 square feet and the other would be 53,000 square feet.  The BOA found that the variance would maintain the essential character of the locality because some surrounding parcels were less than 80,000 square feet, the lots would be adequate to handle septic systems, and Croat would likely suffer an economic injury were the variance not granted.  No party appealed the BOA’s grant of the lot-size variance. 

            Once the variance was granted, Croat began the subdivision approval process.  After Lynden Township approved Croat’s preliminary plat, he presented it to the Stearns County Platting Committee for review.  The Platting Committee, which is composed of representatives from various county agencies, reviews preliminary plats to offer recommendations to the applicant and the Planning Commission.  The Platting Committee unanimously agreed to approve Croat’s preliminary plat with conditions, which Croat did not contest.

            Croat’s preliminary plat was presented to the Planning Commission.  Neighboring landowners, concerned about the impact of Croat’s proposed septic system on their well, opposed it.  At the close of the public hearing, the Planning Commission discussed the recommendation of the Platting Committee.  The record indicates that most of the discussion centered on the lot-size variance.  A motion to recommend approval of the preliminary plat failed; a subsequent motion to recommend denial passed by a 6-4 vote.

            Despite the Planning Commission’s adverse recommendation, Croat brought the preliminary plat before respondent Stearns County Board of Commissioners (Board).  After public testimony and a lengthy discussion of whether the Board could deny approval of the preliminary plat when the BOA had already granted the lot-size variance, the Board voted to deny approval.  Reasoning that neither the Planning Commission nor the Board was constrained by the BOA variance, the environmental services director stated that, “I think that the planning commission is looking at completely different issues than the [BOA].”

            On July 12, 2005, the Board adopted Resolution 05-74, which contained findings of fact and a formal denial of Croat’s request for approval of the preliminary plat.  The resolution stated that the Board “finds that approving the proposal would result in residential density that is too high for a Natural Environment lake. . . . [A]nd an increase in density may adversely impact the water quality.”  The resolution also stated that the “issue of granting a variance to allow creating the two lots is separate from that of the Board considering a development proposal for the property.” 

            Croat brings a certiorari appeal to this court challenging the Board’s denial of the preliminary plat.



            “A court issues a writ of certiorari ‘to review the proceedings of a tribunal exercising judicial or quasi-judicial functions.’”  In re Application of Merritt for a Zone Change, 537 N.W.2d 289, 290 (Minn. App. 1995) (quoting Honn v. City of Coon Rapids, 313 N.W.2d 409, 414 (Minn. 1981)).  Decisions regarding variances are quasi-judicial.  Id.

When reviewing a county board’s decision on a writ of certiorari, the court’s inquiry is limited to questioning whether the board had jurisdiction, whether the proceedings were fair and regular, and whether the board’s decision was unreasonable, oppressive, arbitrary, fraudulent, without evidentiary support, or based on an incorrect theory of law.

BECA of Alexandria, L.L.P. v. County of Douglas ex rel. Bd. of Comm’rs, 607 N.W.2d 459, 462 (Minn. App. 2000) (quotation omitted).  The issues in this appeal require interpretation of Stearns County land use ordinances and Minnesota statutes.  See Stearns County, Minn., BOA Ordinance 208 (2000); id., Land Use and Zoning Ordinance 209 (2000); id., Subdivision Ordinance 230 (2001).  “Interpretations of state statutes and existing local zoning ordinances are questions of law that this court reviews de novo.”  Buss v. Johnson, 624 N.W.2d 781, 784 (Minn. App. 2001); see Frank’s Nursery Sales, Inc. v. City of Roseville,295 N.W.2d 604, 608 (Minn. 1980).  “A zoning ordinance should be construed (1) according to the plain and ordinary meaning of its terms, (2) in favor of the property owner, and (3) in light of the ordinance’s underlying policy goals.”  SuperAmerica Group, Inc. v. City of Little Canada, 539 N.W.2d 264, 266 (Minn. App. 1995), review denied (Minn. Jan. 5, 1996).


            The first issue is whether the Board had authority to deny Croat’s preliminary plat because the lots are smaller than required by the zoning ordinance, even though Croat had applied for and been granted a lot-size variance by the BOA. 

            Croat argues that if the Board is allowed to deny a preliminary plat that meets the legal requirements of the official controls, as amended by a variance, it strips the BOA of its exclusive authority to grant or deny variances.  Therefore, Croat argues, the Board acted without authority and outside its jurisdiction when it denied the preliminary plat for density concerns.  Conversely, the Board argues that it has the sole power to approve or deny a preliminary plat, and actions taken by the BOA do not limit such authority.

            Stearns County, Minn., BOA Ordinance 208 creates the BOA and outlines its powers.  Stearns County, Minn., BOA Ordinance 208 § 1.2.  Ordinance 208 grants the BOA power over official controls.  Id.  The statutes provide that official controls further the purpose and objectives of the comprehensive plan and are adopted by local ordinance.  Minn. Stat. § 394.24, subd. 1 (2004).  The statutes also provide for county boards of adjustment and recognize that such boards have exclusive power and authority to grant or deny variances from official controls.  Minn. Stat. § 394.27, subds. 5, 7 (2004); see Stearns County, Minn., BOA Ordinance 208 § 6.3; id., Land Use and Zoning Ordinance 209 § 4.3.  Stearns County further provides that all decisions of the BOA regarding variances are final unless appealed by an aggrieved party or state subdivision within 30 days.  Id., BOA Ordinance 208 § 7.2; id., Land Use and Zoning Ordinance 209 § 4.9.8; id., Subdivision Ordinance 230 § 11.7.7.

             The state statute and county ordinances contemplate a division of authority between the BOA and the Board.  The Board has the overarching authority to grant or deny a preliminary plat, based on the recommendations of the Planning Commission, consistency with official controls, and other considerations.  See id., Subdivision Ordinance 230 § 5.3.  Conversely, the BOA has exclusive power to grant or deny variances.  See Minn. Stat. § 394.27, subds. 5, 7.  The statute indicates that the legislature intended that variances would be granted only in exceptional cases.[1]  See id., subd. 7.  Once granted, the variance becomes part of the zoning framework for the particular parcel to which it applies.  See Zylka v. City of Crystal, 283 Minn. 192, 195, 167 N.W.2d 45, 49 (1969).

            Unless it amends the ordinance to change the underlying zoning, the Board cannot alter the action of the BOA on a particular variance if no party appealed the BOA decision.  See Stearns County, Minn., Subdivision Ordinance 230 § 11.7.7.  By statute and by ordinance, the BOA’s determination becomes final and modifies the zoning applicable to the particular parcel.  As a result, if the lot sizes in the preliminary plat are consistent with the variance, the Board cannot deny a plat on the sole basis that the plat does not comply with lot-size or density requirements of the underlying zoning ordinance.

            Here, the BOA granted the variance.[2]  That decision was not appealed; it is final.  The  Board acted beyond its authority when it denied Croat’s preliminary plat because the proposed lots were smaller than that contemplated by the Natural Environment lake zone.  Because of the variance, the zoning lot-size requirement for Croat’s property was amended.  Thus, to the extent that the Board denied Croat’s plat simply because the lots would have less than 80,000 square feet of area, it erred.  See PTL, LLC v. Chisago County Bd. of Comm’rs, 656 N.W.2d 567, 571 (Minn. App. 2003) (noting that “when an ordinance specifies minimum standards to which subdivisions must conform, local officials lack discretionary authority to deny approval of a preliminary plat that meets those standards”).


            The second issue is whether, aside from considerations essentially based on lot size, the Board acted arbitrarily and capriciously in denying Croat’s preliminary plat.  “We review a municipal body’s land use decision to determine whether it was unreasonable, arbitrary, or capricious.”  Trisko v. City of Waite Park, 566 N.W.2d 349, 352 (Minn. App. 1997) (citing Swanson v. City of Bloomington, 421 N.W.2d 307, 313 (Minn. 1988)), review denied (Minn. Sept. 25, 1997).  “A court gives great deference to a county’s land use decision and will overturn such decisions only when there is no rational basis for them.”  BECA, 607 N.W.2d at 463.  An action is not arbitrary “when it bears a reasonable relationship to the purpose of the ordinances.”  Clear Channel Outdoor Adver., Inc. v. City of St. Paul, 675 N.W.2d 343, 346 (Minn. App. 2004), review denied (Minn. May 18, 2004).  If at least one reason given for denial satisfies the rational basis test, the denial of a land use decision is not arbitrary.  Trisko, 566 N.W.2d at 352.  Yet there are limits on denial of plats.  The Board cannot deny a permitted use for the reason that the use does not comply with generalized goals contained in the comprehensive plan.  See PTL, 656 N.W.2d at 574.

            The Stearns County Land Use and Zoning Ordinance was enacted to protect public health and safety, promote orderly development, preserve open space and agricultural land, conserve natural resources, and provide official controls to implement the goals and policies of the comprehensive plan.  Stearns County, Minn., Land Use and Zoning Ordinance 209 § 1.2.  Croat’s Lynden Township parcel borders on Long Lake.  As we have already noted, that land is zoned as a Natural Environment lake as part of the Stearns County Shoreland Overlay District.  Id. § 10.2.3.  The purpose of the overlay district is to “protect and enhance the quality of surface waters by promoting the wise utilization of public waters and related land resources.”  Id. § 10.2.1.

            Stearns County Subdivision Ordinance 230 addresses the requirements for subdividing property.  The ordinance provides for orderly development, protects public health, safety and welfare, establishes reasonable design standards, guides development to ensure adequate transportation and public services, safeguards ground water from pollution, and encourages wise management of natural resources.  Stearns County, Minn., Subdivision Ordinance 230 § 1.3.  In addition, the ordinance sets out a comprehensive list of considerations for the Board to consider during the plat-approval process.  First among the considerations is whether the plat conforms to all applicable official controls and state and federal laws.  Id. § 5.3.7.  Ordinance 230 also requires the Board to review the following: consistency with the comprehensive plan; compliance with the floodplain overlay district; whether the plat has two onsite sewage facilities for each lot; whether a future variance will be required; whether the plat provides for adequate storm water runoff; whether the plat has sufficient buildable area; whether a vegetation buffer is required; and the impact on public health, especially from water quality concerns.  Id.

            Taken together, these two ordinances govern the development of land in Stearns County.  The zoning ordinance clearly contemplates the preservation of natural resources and water quality within the overlay district, as does the subdivision ordinance.  Therefore, when the Board considers preliminary plats it must determine whether the plat comports with the official controls and sufficiently protects natural resources.  These considerations involve more than just lot size.

            Croat argues that it was arbitrary and capricious for the Board to deny his preliminary plat, as it met all the legal requirements set out in the platting and zoning ordinances with the BOA variance.  Here, the Board passed Resolution 05-74 in July 2005, which included six bases for denial of Croat’s preliminary plat.  Five bases are related to lot size and the BOA variance.  The Board found that the plat will not maintain the essential character of the locality, that Croat had reasonable use of the land without the subdivision and that any harm would be primarily economic in nature.  This, however, is the test for granting a variance, which is the province of the BOA.  Minn. Stat. § 394.27, subd. 7.  The statute provides that even the county board may appeal the determination of the BOA, but it did not do so in this case.  See Minn. Stat. § 394.27, subd. 9 (2004).

            In addition, the Board determined that Croat’s plat was not consistent with the comprehensive plan because the lot sizes were less than the minimum size allowed for the Natural Environment lake zone.  However, when the BOA granted the variance it implicitly determined that the use was consistent with the comprehensive plan.  In addition, as we have previously observed, the variance changed the underlying zoning for lot size so that Croat’s plat had different area requirements than that required by the Natural Environment lake zone.  Therefore, the comprehensive-plan and lot-size considerations are not a proper basis for denying approval of the plat.  The Board’s finding that the “proposed substandard lots are not consistent with the spirit and intent of the Land Use and Zoning Ordinance, which advocates that new lots should meet the minimum lot size of 80,000 square feet,” also fails to articulate a proper basis for denial.

            The Board contends that its decision was based on yet other considerations not before the BOA.  The Board asserted in its resolution denying plat approval that “an increase in density may adversely impact the water quality.”  The Shoreland Overlay District was instituted specifically to guard against degradation of water quality in Stearns CountySee Stearns County, Minn., Land Use and Zoning Ordinance 209 § 10.2.1.  But, other than nonspecific, generalized complaints of concerned neighbors, the Board had no evidence before it relating to the impact of the preliminary plat on water quality.  “[N]eighborhood feeling may not constitute the sole basis for a zoning decision . . .” Swanson v. City of Bloomington, 421 N.W.2d 307, 313 (Minn. 1988).  More troubling, planning commission staff concluded that proper septic design would not pose a threat to neighboring wells, and that if Croat complied with certain conditions, such as drainage ditches and elevation requirements, water quality would not be a concern.  On this record, there is no evidence of any water quality problem posed by the plat.  The Board does not identify nor does the record contain any other basis for the Board’s rejection of Croat’s plat.

            We also note the apparent anomaly of the county’s ultimate policy-making entity, the Board, being constrained by action taken by the BOA.  However, the ordinance and the statute define the relationship, not popular perceptions.  For those disappointed by the BOA determination, the proper course of action was to appeal that determination rather than engaging in a post-hoc, quasi-judicial bypass of such action.  As earlier noted, the Board has ultimate legislative authority to amend its ordinances.

            Because the variance changed the zoning lot-size requirements and because the record does not contain substantial evidence supporting the Board’s action, its decision was arbitrary and capricious.  Therefore, we reverse and remand to the Board with directions to approve Croat’s preliminary plat.

            Reversed and remanded.

[1] A variance permits a particular parcel to be “used in a manner forbidden by the ordinance by varying the terms of the ordinance.”  Zylka v. City of Crystal, 283 Minn. 192, 195, 167 N.W.2d 45, 49 (1969); see also Minn. Stat. § 394.22, subd. 10 (2004) (“‘Variance’ means any modification or variation of official controls where it is determined that, by reason of exceptional circumstances, the strict enforcement of the official controls would cause unnecessary hardship.”); Minn. Stat. § 462.357, subd. 6(2) (2004) (instructing that the BOA has the power to grant variances). The BOA may grant variances when: (1) the landowner suffers a hardship, meaning that the property has no reasonable use without the variance; (2) the landowner’s plight is due to circumstances unique to the property; and (3) the variance will not alter the essential character of the locality.  Minn. Stat. § 394.27, subd. 7; see also Nolan v. City of Eden Prairie, 610 N.W.2d 697, 701 (Minn. App. 2000), review denied (Minn. July 25, 2000).  All three requirements must be met.  Mohler v. City of St. Louis Park, 643 N.W.2d 623, 631 (Minn. App. 2002), review denied (Minn. July 16, 2002).

[2] We note that the variance may not grant Croat as significant a deviation from the area requirements as first appears.  Croat was required to dedicate a 33-foot-wide strip of land running the length of each parcel.  These strips are excluded from the lot size.  The record does not indicate when, if ever, this strip would be used or improved.  If these strips are informally considered part of the final lot sizes, the lots are closer to 80,000 square feet.