This opinion will be unpublished and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
In re the Matter of the Decision of
to Deny a Variance to
Cyril Stadsvold and Cynara Stadsvold.
Filed July 3, 2007
Otter Tail County District Court
File No. C0-05-1901
Nathan L. Seeger, Nathan Seeger Law Office,
Nicholas J. Heydt, Michael T. Rengel, Pemberton, Sorlie, Rufer & Kershner, PLLP, 110 North Mill Street, P. O. Box 866, Fergus Falls, MN 56538 (for respondent Otter Tail Board of Adjustment)
Considered and decided by Stoneburner, Presiding Judge; Dietzen, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
Appellants challenge the denial of their variance request, arguing that (1) they do not need a variance as a non-conforming lot with a site permit; (2) they did not receive a complete, accurate, adequate, or fair hearing; (3) the variance denial was arbitrary and capricious, and the reasons for the denial were insufficient and without a factual basis; and (4) the doctrines of equitable estoppel, vested rights, and unconstitutional taking require the granting of the variance. We affirm.
Appellants Cyril and Cynara
Stadsvold own a lot on
After the structures were nearly completed, appellants were cited for violating the setback requirements in the ordinance. A land survey showed that the dwelling was 5 feet from the lot line, instead of the required 10 feet; and 16.7 feet from the road right-of-way, instead of the required 20 feet. The garage was 5.1 feet from the road right-of-way, instead of the required 20 feet.
Appellants applied for an
after-the-fact variance for a structure setback.
Appellants challenged the board’s denial, under Minn. Stat. § 394.27, subd. 9 (2006). The district court granted the board’s motion for summary judgment, finding that appellants failed to show any reason for the variance other than their lack of knowledge of their property lines. This appeal follows.
D E C I S I O N
On appeal from summary judgment, this court
determines whether any genuine issues of material fact exist and whether the
district court erred as a matter of law.
State by Cooper v. French, 460
N.W.2d 2, 4 (
Ordinance Required Variance
Appellants argue that as a grandfathered,
non-conforming lot, they were not required to obtain a variance under the
ordinance. The interpretation of an
ordinance is a question of law subject to de novo review. Gadey v. City of Minneapolis, 517
N.W.2d 344, 347 (Minn. App. 1994), review denied (Minn. Aug. 24,
1994). Three rules of construction guide
a court’s interpretation: terms are given their plain and ordinary meaning;
“zoning ordinances should be construed strictly against [a] city and in favor
of [a] property owner”; and “zoning ordinance[s] must always be considered in
light of [their] underlying policy [goals].”
Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604,
Under the ordinance, non-conformity is defined as:
Any legal use, structure or parcel of land already in existence, recorded, or authorized before the adoption of official controls or amendments thereto that would not have been permitted to become established under the terms of the official controls as now written, if the official controls had been in effect prior to the date it was established, recorded or authorized.
The ordinance provides exemptions for
A Site Permit shall be obtained prior to erecting or installing a new structure[.] . . . The applicant . . . shall file an application which shall include a scale drawing of the proposal[.] . . . The applicant shall notify the Administrative Officer once the building footings have been constructed for an inspection. Prior to these inspections, the applicant shall stake out all lot lines and road right-of-ways.
Hearing and Record
argue that the hearing was not fair and adequate and that the record was
incomplete. On appeal, this court reviews
the record made before the local authority, without according any special
deference to the district court’s review.
Swanson v. City of
Appellants contend that the hearing was unfair because they were only allotted 15-20 minutes. The record shows that appellants’ application was read, and appellants were given an opportunity to supplement their application; appellants’ general contractor gave a statement; other hearing attendees were given the opportunity to speak for or against the application; appellants were permitted to submit letters in support of the variance; and appellants gave a statement. The transcript is approximately 17 pages long. Appellants were afforded adequate time to present their argument.
Appellants contend that
the hearing was unfair because their application was treated like a “before-the-fact”
application. But there is nothing in the
ordinance providing that an after-the-fact application should be treated
differently from a request for a variance.
Appellants contend that the record is incomplete because it does not include the board’s inspection of the lot. But that was not necessary because appellants’ application specifically states that their garage is 5 feet from the road right-of-way, when the required setback is 20 feet; that their house is 5 feet from the lot line, when the required setback is 10 feet; and that their house is 16.7 feet from the road right-of-way, when the required setback is 20 feet. A board member stated: “[t]he house is too close. The garage is too close.” The board did not have to describe their physical inspection of the property, even though the board did visit the property, because the reason for the denial is clear from the statement that appellants’ structures are “too close” to the lot lines and the road right-of-way, and the dimensions are provided in the application.
Appellants contend that the record is incomplete because there are portions of the hearing that are inaudible. The transcript shows that a board member said: “The reason (inaudible) I didn’t is because it’s so (inaudible) out here. Bad situation.” Appellants suggest that crucial portions were inaudible because they contain the source of information the board relied upon in denying the variance. But the transcript also provides the following:
Board Member: I would not have approved it if it had come before as a brand new construction. There was plenty of room on this lot.
Board Member: Plenty of room.
Board Member: For reasonable use of that lot.
Board Member: Squeeze it together a little bit.
Board Member: Because of that I’m going to make a motion that we deny the variances as requested.
And the meeting minutes succinctly state the basis for the board’s decision. Appellants’ assertion that a “crucial portion” of the transcript is missing is not supported by a review of the entire record.
Appellants contend that the record is
incomplete because the board failed to consider the practical-difficulty
standard required by the ordinance and the factors listed in the ordinance.
A. Variances shall only be permitted when they are in harmony with the general purposes and intent of the Ordinance in cases when there are practical difficulties or particular hardship in the way of carrying out the strict letter of the Ordinance. ‘Hardship’ as used in connection with the granting of a variance means the property in question cannot be put to a reasonable use if used under the conditions allowed by the Ordinance; the plight of the landowner is due to circumstances unique to the property not created by the landowner; and the variance, if granted, will not alter the essential character of the locality.
B. Economic considerations alone shall not constitute a hardship if a reasonable use for the property exists under the terms of the Ordinance.
. . . .
E. In considering variance requests, the [board] must also consider:
1. Whether the variance will secure for the applicant a right or rights that are enjoyed by other owners in the same area;
2. Whether existing sewage treatment systems on the property need upgrading before additional development is approved;
3. Whether granting the variance will be contrary to the public interest or damaging to the rights of other persons or to property values in the neighborhood.
4. No variance shall be granted simply because there are no objections or because those who do not object outnumber those who do.
Appellants suggest that the board imposed a more stringent undue-hardship standard. But the written denial and the meeting minutes show that the board determined that appellants failed to show an “adequate hardship.” The ordinance requires a variance in cases when particular difficulties or a particular hardship exists. The board finding that appellants failed to show an adequate hardship meets the standard set forth in the ordinance. Additionally, under the ordinance, “hardship” means that the property cannot be put to reasonable use due to circumstances unique to the land, not created by the landowner. Appellants have not shown a hardship unique to the land because appellants created the hardship by not determining the location of their property lines. The board used the correct standard in considering appellants’ variance request.
Finally, appellants suggest that the board’s failure to consider the additional factors provided in the ordinance makes the denial arbitrary as a matter of law. But appellants fail to suggest how findings on these factors, i.e., whether the variance will secure for appellants a right enjoyed by others in the area, whether sewage-treatment systems on the property need upgrading, whether granting the variance will be contrary to the public interest or damaging to the rights of other persons or to property values, would have lead to the granting of the variance. The board made adequate findings for denying the variance.
Arbitrary and Capricious, Insufficient Reasons, and Without Factual Basis
A board of adjustment has broad discretion to grant or deny variances, and we review the exercise of that discretion to determine whether it was reasonable. In determining reasonableness, we are guided by the standards set out in the relevant county ordinance, but a board’s authority to grant variances under the ordinance may not exceed the power granted by statute. When proceedings before a board are fair and complete, appellate review is based on the record of the board’s proceedings, not the district court’s findings or conclusions.
Kismet Investors, Inc.
v. County of Benton, 617 N.W.2d 85, 90 (Minn. App.
2000) (citations omitted), review denied
The board of adjustment shall have the exclusive power to order the issuance of variances from the terms of any official control including restrictions placed on nonconformities. Variances shall only be permitted when they are in harmony with the general purposes and intent of the official control in cases when there are practical difficulties or particular hardship in the way of carrying out the strict letter of any official control, and when the terms of the variance are consistent with the comprehensive plan. ‘Hardship’ as used in connection with the granting of a variance means the property in question cannot be put to a reasonable use if used under the conditions allowed by the official controls; the plight of the landowner is due to circumstances unique to the property not created by the landowner; and the variance, if granted, will not alter the essential character of the locality. Economic considerations alone shall not constitute a hardship if a reasonable use for the property exists under the terms of the ordinance.
Minn. Stat. § 394.27, subd. 7 (2006). Appellants essentially argue that the denial of the variance was arbitrary and capricious because the board used the incorrect standard. Appellants argue that they are requesting an area variance, as compared to a use variance, and as such, the correct standard is the practical-difficulty standard.
The practical difficulty that appellants experience with the denial of the variance is the moving of their structures; this is an economic consideration, which standing alone does not constitute a practical difficulty because the land still has reasonable use without the granting of the variance. The reason that the structures went up without compliance with the appropriate setbacks was appellants’ failure to properly stake their property lines, which was their responsibility as landowners. The board’s denial was not arbitrary or capricious and was supported by a sufficient factual basis.
Appellants also rely on In
re Kenney, in arguing that the board must consider the equities in favor of
the landowner when considering an after-the-fact-variance application. 374 N.W.2d 271 (
Equitable Estoppel, Vested Rights, and Unconstitutional Taking
Appellants argue that the district court erred in failing to consider the claims of equitable estoppel, vested rights, and unconstitutional taking. In its findings, the district court concluded that appellants’ failure to raise these issues before the board and without justification for such failure required that the issues not be addressed in district court.
district court has broad powers in its consideration of equitable
doctrines. But the district court is not
required to consider claims not pleaded in an appeal. Here, appellants failed to plead the
vested-rights and unconstitutional-taking claims in their appeal of the board’s
decision. Thus, the district court did
not err in its determination that the matters were not properly before the
court. Appellants did plead the
equitable-estoppel claim in their appeal of the board’s decision, and the
district court could have addressed this claim.
Nevertheless, it would be futile to remand on any of the equitable-doctrine
claims because appellants’ arguments are meritless. See Grein v.
383, 387 (
In order for the board to be
equitably estopped from denying appellants’ variance request, appellants must
demonstrate that the board, “through  language or conduct, induced
[appellants] to rely, in good faith, on this language or conduct to [their]
injury, detriment or prejudice.” Ridgewood Dev. Co. v. State, 294 N.W.2d
288, 292 (
A local government exercising its zoning powers will be estopped when a property owner, (1) relying in good faith (2) upon some act or omission of the government, (3) has made such a substantial change in position or incurred such extensive obligations and expenses that it would be highly inequitable and unjust to destroy the rights which he ostensibly had acquired.
“Estoppel is available as a defense
against the government if the government’s wrongful
conduct threatens to work a serious injustice.”
“When a right has arisen
upon a contract, or transaction in the nature of a contract, authorized by
statute and liabilities under that right have been so far determined that
nothing remains to be done by the party asserting it, it becomes vested.” Yaeger
argue that the denial of their variance request constitutes a “taking” of their
property in violation of the Minnesota Constitution, which provides: “Private
property shall not be taken, destroyed or damaged for public use without just
an unconstitutional taking a landowner must demonstrate that he had been
deprived, through governmental action or inaction, of all the reasonable uses
of his land.” Holaway v. City of