This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Clifford J. Kronebusch, et al.,
Filed June 5, 2007
Wabasha County District Court
File No. 79-C4-05-000230
Raymond L. Hansen, O’Brien & Wolf, L.L.P., 206 South Broadway, Suite 611, P.O. Box 968, Rochester, MN 55903-0968 (for appellants)
T. Squires, Ratwik, Roszak & Maloney, P.A., 300
Considered and decided by Lansing, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant landowners challenge the district court’s grant of summary judgment in favor of respondents Wabasha County Board of Adjustment and the County of Wabasha, arguing that (a) appellants’ action for declaratory judgment seeking approval of their variance request by operation of Minn. Stat. § 15.99, subd. 2(a) (Supp. 2003), was properly before the district court and (b) they are entitled to that relief as a matter of law. Because appellants failed to seek review of the zoning officer’s decision from the board of adjustment and did not exhaust their administrative remedies, we affirm.
Clifford and Debra Kronebusch own just over six acres of land in
In April 2004, appellant Clifford Kronebusch tried to file an application for a variance, but the zoning officer refused to accept it. On June 11, 2004, appellants again presented an application for a variance to the zoning officer, who again tried to refuse. When appellants told the zoning officer that they had talked to a county commissioner, who said that the zoning officer should accept the application, he did so.
On June 18, 2004, the zoning officer sent appellants a letter that all of the parties interpret as constituting a denial of their request. He also advised appellants that their application would not be presented to the board of adjustment because their variance request was for a prohibited activity under Minn. Stat. § 394.27, subd. 7 (2002).
Appellants did not appeal the zoning officer’s decision to the board of adjustment. Instead, they brought an action for declaratory judgment in district court. The district court granted summary judgment to respondents on the ground that appellants did not exhaust their administrative remedies by first appealing the decision of the zoning officer to the board of adjustment before seeking review in district court. This appeal follows.
D E C I S I O N
summary judgment, the appellate court will address whether there are genuine issues
of material fact and whether the district court erred as a matter of law. State
by Cooper v. French, 460 N.W.2d 2, 4 (
address the issue of exhaustion of administrative remedies, which the district
court found dispositive. Generally, a
party “must first exhaust the administrative remedies available before bringing
an action for judicial relief.” Amcon Corp. v. City of
The board of
adjustment has the authority to “hear and decide appeals from and review any
order, requirement, decision or determination made by any administrative
official charged with enforcing” zoning ordinances.
Appellants, however, argue that the zoning staff internally denied their application on the ground that it was for a use variance that could not be granted by the board of adjustment and therefore could not be presented to the board. Appellants argue that, using this logic, if their application could not be considered by the board of adjustment, they had no reason to appeal the zoning officer’s decision denying the application, because such an appeal would be as futile as their submission of the zoning-variance application itself.
A party may
not decline to follow administrative procedures “simply because he believed
that he would not be successful.”
appellants argue that the administrative-review provisions of the ordinance
more logically apply to other functions of the zoning staff and board of
adjustment. They cite the zoning staff’s
authority to issue a stop-work order as an example of an administrative
decision that they assert could properly be appealed to the board of
contend that the wording of the ordinance required the zoning staff to forward
their application for a variance to the board of adjustment, rather than making
an internal administrative decision denying it, as was done here.
Finally, appellants, in the alternative, contend that they did, in fact, perfect an appeal by filing a zoning-variance application because the application form is entitled “Notice of appeal or application for a variance.” They note that there is no additional reference to any other application, procedure, or fee to “appeal” the zoning officer’s internal denial of their application. Consequently, they assert that they perfected their appeal at the same time that they filed their zoning-variance application.
that this is a new argument on appeal that was not offered to the district
court and is therefore not properly before this court on appeal. Thiele
v. Stich, 425 N.W.2d 580, 582 (
The decision of the district court granting summary judgment to respondents on the ground that appellants failed to exhaust their administrative remedies is affirmed.
 We note that this subdivision was later
amended to provide that the zoning administrator is to “[r]eceive, file and, as appropriate after review, forward all
applications for appeals, variances, conditional uses, and amendments to the
designated official bodies.”