This opinion will be unpublished and

may not be cited except as provided by

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






Kathleen Nelson,


City of Minnetonka,


Filed August 22, 2006

Affirmed in part and reversed in part

Peterson, Judge


Hennepin County District Court

File No. AP 04-12956


Patrick B. Steinhoff, Howard A. Roston, Bruce D. Malkerson, Malkerson Gilliland Martin, L.L.P., 1900 U.S. Bank Plaza South, 220 South Sixth Street, Minneapolis, MN  55402 (for respondent)


George C. Hoff, Justin L. Templin, Hoff, Barry & Kuderer, P.A., 160 Flagship Corporate Center, 775 Prairie Center Drive, Eden Prairie, MN  55344 (for appellant)


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

U N P U B L I S H E D   O P I N I O N


            In this appeal from a summary judgment holding that appellant city’s denial of respondent’s permit application violated respondent’s right to equal protection and that the city had to issue a building permit to respondent, the city argues that the district court erred in ruling that respondent’s rights to equal protection were denied where the district court failed to apply the similarity-in-character prong of the equal-protection analysis and misapplied the similar-in-time prong that it did apply.  Respondent filed a notice of review challenging the district court’s ruling that the city had a rational basis for denying respondent’s application.  We affirm the rational-basis ruling and reverse the equal-protection ruling.


            Respondent Kathleen Nelson owns a shoreline lot on Lake Minnetonka located at 2504 Bantas Point Lane.  The size of the lot is 3,731 square feet.  The lot is located in an area that is zoned R-1, low density residential district.  The lot is smaller than the minimum lot size but is a qualifying small lot, making it subject to reduced setback standards.  Minnetonka, Minn., Code of Ordinances § 300.10 (6), (7) (2005).  Under the qualifying-small-lot zoning provision, the buildable area of Nelson’s lot is 60 square feet.  See Minnetonka, Minn., Code of Ordinances §§ 300.02, (16) (2005), 300.10, subd. 7.

            Nelson proposes to tear down an existing 697 square-foot single-story home and build a 30-foot-tall, two-and-one-half-story home with about 2,300 square feet of living space plus a two-car garage.  The existing structure on the lot is substandard in construction and structurally unstable, eliminating the possibility of remodeling or adding onto the existing structure and retaining grandfathered rights.  Because the existing structure would be torn down, the site would be treated as a vacant lot.

            Eleven variances would be required to permit Nelson’s proposed home.  Six are lot variances and five are setback variances.  Although the proposed home would have greater shore-land and flood-plain setbacks than the existing structure, the proposed structure would increase overall nonconformities.  The proposed structure is larger than the footprint of the existing home and would increase lot coverage from 19% to the maximum allowed 30%.  The front-yard setback would be decreased from 21 feet to 11 feet, creating a potential traffic hazard if a vehicle parked in the driveway extends into the street.  More of the structure’s mass would be located in setback areas.

            The residences located on either side of Nelson’s lot are single-story homes.  Only two homes on Bantas Point Lane are two stories tall, and none of the other 11 homes on Bantas Point Lane is taller than two stories.

            On April 1, 2004, the planning commission held a public hearing on Nelson’s variance application and recommended denying it based on the following findings:

            1) Strict enforcement would not cause undue hardship because of the following circumstances:

                        a. A reasonable sized home could still be built on the site with similar variances.  The size of the home could be reduced to a story and a half to be more in character with the neighborhood.


            2) The variance would not be consistent with the spirit and intent of the ordinance for the following reasons:

                        a. The proposed structure is not considered of reasonable size for this lot.

                        b. The scale of the proposed 2.5-story house is not consistent with the existing homes in the neighborhood.

                        c. The nonconforming setbacks would not be decreased, due to the increase in the height of the building.

                        d. The proposed home . . . would be more imposing on nearby properties.


The city council adopted the planning commission’s recommendation and findings.

            From 2001 to 2005, the city granted more than 47 variances for properties located within two miles of Nelson’s lot.  Our review of the record reveals that nine variance applications were for one or two variances and six applications were for three to five variances.  Nine variances were also granted for a rebuilding project on a 5,630 square-foot lot.  The proposed structure was a 17-foot tall, one-and-a-half-story house in character with the existing neighborhood and on the same footprint as an existing structure.

            Ten variances were granted in connection with combining three lots and dividing them into two lots.  The resulting lots, 2807 and 2811 McKenzie Point Road, were 8,700 square feet and 12,600 square feet.  The following variances were approved:  lot area from 22,000 to 8,700 and 12,600; lot width from 80 to 50 feet for 2807 McKenzie Point Road; lot width at building setback from 110 feet to 72 feet for 2811 McKenzie Point Road; lot width at lake frontage from 75 to 74 feet for 2811 McKenzie Point Road; conditional-use permit for an accessory structure at 2811 that exceeds the 12-foot height requirement to 24 feet; hard-surface coverage from 30% to 49% for 2811; side-yard setback from 24 to 7 feet for 2811[1]; front-yard setback from 35 to 23 feet for 2807; and hard-surface coverage from 30% to 58% for 2807.  Front-yard and hard-surface variances for 2807 were also approved because there would be minimal visual impacts from surrounding properties and the amount of hard-surface coverage would decrease from 72% to 58%.

            Nelson brought this action against appellant City of Minnetonka alleging that, in denying her request for variances, the city violated her equal-protection rights and acted in an unreasonable, unlawful, and arbitrary manner.  The parties filed cross-motions for summary judgment.  The district court granted summary judgment for Nelson on her claim that the city violated her equal-protection rights and granted summary judgment for the city on the claim that the city acted in an unreasonable, unlawful, and arbitrary manner.  The district court ordered the city to grant Nelson a building permit to build her proposed home, and judgment was entered.  This appeal followed.


            On appeal from a summary judgment, this court examines the record to determine whether any genuine issues of material fact exist and whether the district court erred in applying the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  This court must view the evidence in the light most favorable to the party against whom judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

            Equal protection

            A zoning ordinance must operate uniformly on those similarly situated . . . . [T]he equal protection clauses of the Minnesota Constitution and of the Fourteenth Amendment of the United States Constitution require that one applicant not be preferred over another for reasons unexpressed or unrelated to the health, welfare, or safety of the community or any other particular and permissible standards or conditions imposed by the relevant zoning ordinances.


Nw. College v. City of Arden Hills, 281 N.W.2d 865, 869 (Minn. 1979) (quotation and citation omitted).  “Essential to a ruling that equal protection has been denied by discriminatory administration of the laws is a finding that the persons treated disparately are similarly situated.”  State by Spannaus v. Lutsen Resorts, Inc., 310 N.W.2d 495, 497 (Minn. 1981).

            The district court relied on Nw. College to support its conclusion that the denial of Nelson’s variance application violated equal protection.  Nw. College involved two private colleges in the same city; one was denied a special-use permit and the other was granted a building permit.  281 N.W.2d at 867.  The applications of both colleges were considered at the same city-council meeting.  Id.  In the past, the city had granted building permits to the colleges even though the use was not a permitted use under the zoning ordinance.  Id.

            The supreme court concluded:

The disparate treatment of Northwestern and Bethel is constitutionally impermissible.  Because Bethel has long been allowed to pursue its course of construction merely by complying with Arden Hills’ requirements in obtaining building permits, no more may be required of Northwestern on the instant application.




            Here, the district court concluded:

            [Nelson] cited forty-eight variances that have been granted to approximately seventeen properties that are considered qualifying small lots in the last five years.  Of the fifty variances requested on what [Nelson] describes as similarly situated properties, only two were denied.  The two variance requests that were denied were done so in conjunction with granting multiple other variances that allowed the vast majority of the work to be done.  In fact, when City Planner Cary Teague was questioned in his deposition whether there were “any variance applications on any qualifying small lots on lake in the City of Minnetonka in the last five years that have been denied other than Ms. Nelson’s property?”, he answered “I don’t believe so, other than the Hans Hagen little garage.”


            A sampling of the variances granted on qualifying small lots shows that one application was filed within six months of [Nelson’s] . . . , five were filed within five months . . . , one was filed within one month . . . , two were filed within one month . . . , five were filed within nine months . . . , four were filed within thirteen months . . . , two were filed within fifteen months . . . , and five were filed within fourteen months . . . .  Five variances have been granted to homes on the same block as [Nelson.]  [Nelson] has provided compelling evidence that other qualifying small lot owners were granted variances basically by asking.  [Nelson] has demonstrated that the city has granted 48 of 50 requests since 2000 and that this constitutes a violation of [Nelson’s] right to equal protection . . . .


            The district court’s analysis focuses on the similarity in time between Nelson’s application and the other variances that were granted.  But, except for the fact that all lots were qualifying small lots, the district court did not address similarities among the lots or the variances that were granted and Nelson’s request.  Such factors are relevant to an equal-protection analysis.  Cf. Spannaus, 310 N.W.2d at 497 (private party seeking to place campground sign adjacent to scenic highway not similarly situated to state’s directional and other official signs); Castle Design & Dev. Co. Inc. v. City of Lake Elmo, 396 N.W.2d 578, 582 (Minn. App. 1986) (noting that prior variances were granted for larger lots), overruled on other grounds by Myron v. City of Plymouth, 526 N.W. 2d 21 (Minn. App. 1997), review granted (Minn. June 30, 1997).

            The size of one of the lots that was granted a variance, which was an unusually shaped lot, was not stated in the record.  The sizes of the remaining lots ranged from 5,817 to 12,000 feet.  Nelson’s lot was only 3,731 square feet.  Despite having the smallest lot size, Nelson requested the most variances, 11.  One other applicant requested ten variances, but that was in connection with combining three small lots and dividing them into two larger lots.  Three of the variances related to the combination/division, which benefited the city, and the city also benefited from decreased hard-surface-area coverage.

            Most lots were granted only one or two variances each.  Five lots that were granted from three to five variances each ranged in size from almost twice to more than three times larger than Nelson’s lot.  One lot that was granted multiple variances for a rebuilding project required variances only because of large wetland areas on the property, which distinguishes it in type from Nelson’s request.  Another lot that was granted multiple variances for a rebuilding project was almost 2,000 square feet larger than Nelson’s lot, and the proposed structure was a one-and-a-half-story house on the same footprint as the existing structure.  Nelson’s proposed structure is two and a half stories tall and larger than the existing footprint.

            The structure that Nelson proposes is inconsistent with neighboring structures.  Nelson wants to build a 30-foot-tall, two-and-a-half-story home and a two-car garage on three levels.  The homes located on either side of Nelson’s lot are single-story homes, only two homes on Bantas Point Lane are two stories tall, and none of the other 11 homes on Bantas Point Lane is taller than two stories.  The record does not indicate that any structures for which variances were granted differed as significantly from neighboring structures as Nelson’s would.

            The small lot size, the number of variances requested, and the inconsistency between the proposed structure and neighboring structures distinguish Nelson’s variance application from the variance applications that were granted.  Therefore, the denial of her variance application did not violate her equal-protection rights.

            Rational basis

            An appellate court’s “duty in considering zoning cases is to review the decision of the city council independent of the findings and conclusions of the district court.”  VanLandschoot v. City of Mendota Heights, 336 N.W.2d 503, 508 (Minn. 1983).

An appellate court examines the action of the municipality to determine whether it was arbitrary or capricious, or whether the reasons articulated by the municipality do not have the “slightest validity or bearing on the general welfare,” or whether the reasons were “legally sufficient and had a factual basis.”


Mohler v. City of St. Louis Park, 643 N.W.2d 623, 630 (Minn. App. 2002) (citation omitted), review denied (Minn.  July 16, 2002).

            Citing PTL, L.L.C. v. Chisago County Bd. of Comm’rs, 656 N.W.2d 567, 568 (Minn. App. 2003), and Teague’s testimony that an applicant would not know whether a proposed construction project complied with the ordinance in terms of the size of the house in relation to the lot, Nelson argues that the variance provision in the ordinance impermissibly results in the application of subjective criteria.  PTL states,

            Under Minnesota law, 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.  Because a “permitted use” is a use that may be lawfully established if it conforms to the specified regulatory standards, a local government reviews an application for a permitted use to determine only whether the proposed use complies with those standards.


656 N.W.2d at 571-72 (citations omitted).  Because PTL involves a permitted use, it is not on point with this case.  The fact that the Minnetonka variance provision allows the council discretion in deciding whether to grant a variance, rather than prescribing specific minimum standards, is not equivalent to permitting a subjective application of the zoning ordinance.

            Minnetonka, Minn., Code of Ordinances § 300.07 (1) (a) (2005), states:

            A variance may be granted from the literal provisions of this ordinance in instances where strict enforcement would cause undue hardship because of circumstances unique to the individual property under consideration and when it is demonstrated that such actions would be consistent with the spirit and intent of this ordinance.  Undue hardship means the property in question cannot be put to a reasonable use if used under conditions allowed by this ordinance, the plight of the landowner is due to circumstances unique to the property not created by the landowner, and the variance, if granted, would not alter the essential character of the neighborhood.  Economic consideration alone shall not constitute an undue hardship if reasonable use of the property exists under the terms of this ordinance.


            The city council considered Nelson’s variance application in relation to the size of her lot and neighboring homes.  The council determined that a reasonable-size home could be built on the site with similar variances and that if the home was reduced to a story and a half, it would be more in keeping with the neighborhood’s character.  Thus, denial of the variance application would not cause Nelson undue hardship.  The council also determined that the structure was not a reasonable size for the lot.  The evidence in the record regarding the size of lots for which variances were granted and the variances that were granted supports that determination.

            Nelson focuses on the fact that her proposed home is within the 35-foot maximum building height allowed under the ordinance.  But the 35-foot height maximum is not a variance standard.  Minnetonka, Minn., Code of Ordinances § 300.10 (5) (2005), which sets standards for construction in R-1 residential areas, states that a building in an R-1 residential area must conform to the “building height maximum of 35 feet.”  But Nelson’s argument ignores the fact that even though her proposed home would meet the height requirement, a two-and-a-half-story building on a small lot will be more obtrusive than the same size building on a larger lot.

            Citing Curry v. Young, 285 Minn. 387, 396, 173 N.W.2d 410, 415 (1969), Nelson argues that impact on neighboring properties is not a legally sufficient reason for denying a variance.  In Curry, the applicant showed that enforcing setback requirements would preclude any use of the property.  285 Minn. at 397, 173 N.W.2d at 415.  The denial of the variances Nelson seeks does not preclude any use of her property.

            The city council did not act arbitrarily or capriciously in denying Nelson’s variance application.

            Affirmed in part and reversed in part.

[1] The resolution also denied variances to reduce the north side-yard setback from 24 feet to 3 feet for 2811 McKenzie Point Road, and the south side-yard setback from seven feet to three feet for 2807 McKenzie Point Road.