This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






Leon J. Schmidt, et al.,





County of Douglas, et al.,



Filed July 17, 2007

Klaphake, Judge


Douglas County District Court

File No. C9-05-1190


Michael J. Dolan, Thomas J. Reif, Thornton, Reif, Dolan, Bowen & Klecker, P.A., 1017 Broadway, P.O. Box 819, Alexandria, MN  56308 (for respondents)


Michael J. Ford, John H. Wenker, Quinlivan & Hughes, P.A., 400 South First Street, 600 Wells Fargo Center, St. Cloud, MN  56301 (for appellants)


            Considered and decided by Minge, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellants Douglas County and the Douglas County Board of Adjustment (BOA) challenge the district court’s decision reversing their denial of a variance application.  Respondents Leon and Ruth Schmidt applied for the variance to allow them to build a detached garage that would encroach on the minimum setbacks from a township road right-of-way and centerline.

            Because the BOA’s findings have some support in the record, the district court erred in determining that the BOA’s decision to deny the variance was unreasonable, arbitrary, and capricious.  Because respondents failed to prove that the BOA denied their variance while granting other variances that were simultaneously filed, the district court erred in determining that respondents’ rights to equal protection were violated.  We therefore reverse.


            “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.”  Kismet Investors, Inc. v. County of Benton, 617 N.W.2d 85, 90 (Minn. App. 2000), review denied (Minn. Nov. 15, 2000).  “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.”  Id.    We examine a board’s decision to determine “whether it was arbitrary and capricious, or whether the reasons [given] do not have the slightest validity or bearing on the general welfare of the immediate area . . . or whether the reasons given . . . were legally sufficient and had a factual basis.”  VanLandschoot v. City of Mendota Heights, 336 N.W.2d 503, 508 (Minn. 1983) (quotation & citation omitted).

            By statute and by ordinance, a board of adjustment has the authority to grant a variance if the variance is in harmony with the general purposes and intent of local ordinances and if strict enforcement of those ordinances would cause “practical difficulties” or “particular hardship.”  Minn. Stat. § 394.27, subd. 7 (2004); see also Douglas County, Minn., Zoning Ordinance § VI.H.1.a. (2006).[1]  “Hardship” is defined to mean that “(1) the property in question cannot be put to a reasonable use” absent the variance; (2) “the plight of the landowner is due to circumstances unique to the property [and] not created by the landowner;” and (3) “the variance, if granted, will not alter the essential character of the locality.”  Id.  The landowner applying for a variance bears a “heavy burden” to prove that the variance is justified.  Kismet, 617 N.W.2d at 90.

            Here, respondents applied for a variance to allow them to build a detached garage, 10 feet from the township road right-of-way and 45 feet from the centerline of the road; county zoning ordinances require a minimum 32-foot setback from a road right-of-way and a 65-foot setback from a road centerline.  SeeDouglas County, Minn., Zoning Ordinance § III.C.b.4 (2006).  Respondents indicated that they want a garage because they intend to live on their property year-round, because other neighboring structures encroach on the setbacks and they are just requesting to do “what . . . everyone else has done,” and because there is “no other place to put the garage” given the steep slope of their property running down to the lake.

            In denying respondents’ request for a variance, the BOA made the following findings:

1.         The circumstances causing the hardship were created by the property owner, as it is the owner’s choice to place the garage at the proposed location.


2.         The issuance of the variance will not maintain the essential character of the locality because it will be encroaching on setbacks which are established to protect the health, safety and welfare of the residents.


            With respect to the first finding, respondents claimed that their need for a variance was not created by them but by the topography of their property and that their garage could not be placed anywhere else on their property.  While the record does suggest that the placement of the garage is restricted by the steep slope of respondents’ property, the record also shows that when respondents built their house in 1991, they received permission to encroach on the road setback by placing the house 21 feet from the road right-of-way.  Thus, there is some evidence to support the BOA’s finding that the hardship was created in part by respondents.

            With respect to the second finding, we agree with respondents that the record fails to show that the “issuance of the variance will not maintain the essential character of the locality.”  To the contrary, the evidence presented here indicates that many properties along this township road have garages or other structures that encroach on the setbacks.  Thus, this part of the finding is largely unsupported by the record.

            The latter half of the BOA’s finding, however, is supported by evidence regarding the problems that would arise from placement of respondents’ garage 10 feet from the road right-of-way.  The chairman of the township board opposed the variance and raised legitimate concerns about snow removal and installation of water lines, with attendant ditches and fire hydrants along that side of the road.  Cf. VanLandschoot, 336 N.W.2d at 509 (affirming denial of variance to encroach on front yard setbacks and right-of-way frontage, because it would affect community health and welfare by creating problems with snowplowing and with safety and traffic conditions).  Given this evidence regarding the adverse impact that respondents’ proposed garage would have on the township’s ability to maintain and control its road and right-of-way, we conclude that the BOA’s decision to deny the variance was reasonable, and not arbitrary and capricious.  The district court therefore erred in reversing the BOA’s decision.

            The district court also determined that the BOA’s decision violated respondents’ rights to equal protection under the law.  In particular, the court noted that appellants have granted a number of variances to neighboring property owners that allow garages or other structures to encroach on township road setbacks.  But the most recent variances were approved in 2002, some three years before respondents’ 2005 application and before the 2002 reconfiguration of the township road; respondents have not shown that any variances have been approved since the road was reconstructed in 2002.  Because respondents’ variance request was not filed “almost simultaneously” with these neighboring variances that were approved, the district court erred in determining that respondents were denied equal protection under the law.  See Northwestern College v. City of Arden Hills, 281 N.W.2d 865, 869 (Minn. 1979); Kottschade v. City of Rochester, 537 N.W.2d 301, 306 (Minn. App. 1995) (holding one year between variance applications renders applications not similarly situated), review denied (Minn. Sept. 19, 1995).

            The district court’s decision ordering the BOA to grant respondents’ variance application is reversed.[2]



[1]  The Douglas County ordinance outlines factors similar to the statute and includes three additional considerations:  (1) the variance is necessary in order to secure for the applicant rights that are enjoyed by others in the area; (2) no variance shall be granted simply because there are no objections or because those who do not object outnumber those who do, nor for any other reason than a proved hardship; and (3) the applicant must clearly demonstrate whether a conforming sewage treatment system is present.  SeeDouglas County, Minn., Zoning Ordinance § VI.H.1.a. (2006).

[2]  Some of respondents’ arguments also appear to assume that respondents are entitled to a variance merely because prior variances were improperly granted or because ordinances were improperly enforced.  But even if some of the neighboring properties along the township road are not in compliance with setback requirements, “[t]he law in Minnesota is clear that [a governmental entity] cannot be estopped from correctly enforcing the ordinance even if the property owner relied to his detriment on prior [government] action.”  Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn. 1980).