This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
Leon J. Schmidt, et al.,
Filed July 17, 2007
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.
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.
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.
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). “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.”
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.
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.
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
Northwestern College v. City of
The district court’s decision ordering the BOA to grant respondents’ variance application is reversed.
 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.
 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 (