This opinion will be unpublished and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
Dean Croat Construction,
Stearns County Board of Commissioners,
Reversed and remanded
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.
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.
Dean Croat Construction, Inc. (Croat) purchased a 156,000-square-foot parcel of
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.
the variance was granted, Croat began the subdivision approval process. After
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.
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 (
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.
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.
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.
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
the BOA granted the variance. 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.
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
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.
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.
together, these two ordinances govern the development of land in
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
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.
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
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.
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
 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.