This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-96-1079

Charles Kadrie,

Appellant,

vs.

State of Minnesota, City of Roseville,

Respondent.

Filed October 22, 1996

Affirmed

Parker, Judge

Ramsey County District Court

File No. CX952628

Christopher S. Hayhoe, Felhaber, Larson, Fenlon & Vogt, P.A., 4200 First Bank Place, 601 Second Avenue South, Minneapolis, MN 55402 (for appellant)

Willard L. Converse, Peterson, Bell, Converse & Jensen, P.A., 333 South Seventh Street, 3000 Metropolitan Centre, Minneapolis, MN 55402 (for respondent)

Considered and decided by Short, Presiding Judge, Parker, Judge, and Crippen, Judge.

U N P U B L I S H E D O P I N I O N

PARKER, Judge

Appellant Charles Kadrie challenges the partial denial of his application for a variance from the lake setback requirements of the City of Roseville's Shoreland Management Ordinance (SMO). Concluding that Kadrie's above-grade deck violated the SMO and the city's zoning code, the district court found in favor of the city and ordered Kadrie to remove his partially constructed above-grade deck. We affirm.

D E C I S I O N

Findings of fact "shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Minn. R. Civ. P. 52.01. The interpretation of municipal ordinances is a question of law reviewed de novo. Oswalt v. County of Ramsey, 371 N.W.2d 241, 247 (Minn. App. 1985), review denied (Minn. Sept. 26, 1985). On appeal, this court need not defer to the trial court's decision on a purely legal issue. County of Lake v. Courtney, 451 N.W.2d 338, 340 (Minn. App. 1990), review denied (Minn. Apr. 13, 1990).

Kadrie argues that the trial court erred in determining that his above-grade deck violates the substandard and non-conforming use provisions of the city's SMO and zoning code.[1] He contends that he properly applied for a building permit in 1993, but the city failed to mention that he would be prohibited from constructing the new above-grade deck when his permit was approved. He claims that his at-grade deck should be used to measure the shoreline setback point to determine his "substandard" use because the at-grade deck was "grandfathered in" under the SMO and extends further from the house than the new above-grade deck. Kadrie also argues that because the at-grade deck is appurtenant to the homestead, it is illogical for the city to contend that the new above-grade deck also violates the "non-conforming use" provision of the zoning code. He claims that his homestead as constructed facially violates the SMO and the zoning code because it is within the 75-foot shoreline setback, yet the homestead has been grandfathered in despite the encroachment. Therefore, because the homestead as constructed cannot be considered non-conforming or in violation of the SMO, Kadrie argues that construction of the new above-grade deck, which merely enhances the existing above-grade deck, cannot be said to violate the substandard or non-conforming use provisions of the SMO and the zoning code.

Minnesota courts have held:

[A]dministration of zoning ordinances is a governmental, not a proprietary function, and the municipality cannot be estopped from correctly enforcing the ordinance even if the property owner relied to his detriment on prior city action.

Frank's Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 607 (Minn. 1980) (citing W. H. Barber Co. v. City of Minneapolis, 227 Minn. 77, 34 N.W.2d 710 (1948)). A zoning ordinance must always be considered in light of its underlying policy. Lowry v. City of Mankato, 231 Minn. 108, 113-14, 42 N.W.2d 553, 558 (1950). Zoning ordinances must be construed according to their plain and ordinary meaning. County of Lake, 451 N.W.2d at 340. A property owner is charged with knowledge of whether a local zoning ordinance permits construction undertaken on the property. Stotts v. Wright County, 478 N.W.2d 802, 804 (Minn. App. 1991) (citing Jasaka Co. v. City of St. Paul, 309 N.W.2d 40, 44 (Minn. 1981)), review denied (Minn. Feb. 11, 1992). A zoning board has broad discretion in denying variances, and a reviewing court is limited to determining whether the board's decision was based on legally sufficient reasons. Id. at 806 (citing VanLandschoot v. City of Mendota Heights, 336 N.W.2d 503, 508-09 (Minn. 1983)).

The trial judge found that Kadrie's home as constructed was within the 75-foot setback with an above-grade deck and that an at-grade "patio deck"[2] further extended to within 15 feet from the lakeshore. The trial judge also observed that Kadrie applied only for a permit for a family room and that the kitchen and new deck additions were shown only on the blueprints. The trial judge noted that section 18.250 of the SMO (1) "grandfathered-in" structures like Kadrie's home that did not comply with the setback ordinance, but (2) prohibited structural alteration or addition to the substandard use. Furthermore, the trial judge noted that the SMO "adopted the existing City zoning code by reference and shall apply if it imposes greater restriction." The trial court also found that section 11.020 of the zoning code stated that "non-conforming uses may continue, but may not be extended, expanded, or intensified * * *." The trial judge then found that because Kadrie's at-grade patio deck consisted of two-by-six boards nailed to two-by-four sleepers, laid on a bed of sand, and was unattached to the house in any way, it was not an appurtenance thereto. She concluded, therefore, that under the SMO it could not be used as a measurement tool to determine the effective setback allowance. Alternatively, the trial court noted that even if the at-grade deck were found to be an appurtenance to the house, the building of the above-grade deck would be an extension, expansion, or intensification of the area contained within the non-conforming setback and would violate the city zoning code. The trial judge held that because the above-grade deck violated the city's SMO and zoning code, it was necessary to order removal of the structure.

Under these circumstances, we cannot say that the trial judge erred in concluding that Kadrie's newly constructed above-grade deck violates the city's SMO and zoning code. The trial court's factual findings are supported by the evidence. We observe that the color photos found in the appendix of Kadrie's brief lend credibility to the conclusion that the at-grade patio-deck is not an appurtenance within the meaning of the SMO and zoning code. The American Heritage dictionary defines patio as follows:

1. An outdoor space for dining or recreation that adjoins a residence and is often paved * * *.

American Heritage Dictionary 1327 (3rd ed. 1992) (emphasis added). The color photos and the building inspector's report show that Kadrie's at-grade patio deck is "snug up" to the house and not attached. Kadrie's reliance on Stotts, therefore, is misplaced as applied to these facts, because the deck described in Stotts was of quite a different nature. In Stotts, this court determined that "any deck, by definition, is appurtenant to a building, to which setback requirements indisputably apply." Stotts, 478 N.W.2d at 806 (emphasis added) (setback requirements of a zoning ordinance applied to a one-story boathouse with an enclosed deck on top of the structure, but barred construction of a second story in place of the deck).

We hold that the evidence shows that the at-grade patio deck comports with the definition of a patio in that it simply adjoins the home, without attachment. The at-grade patio-deck, therefore, is not a permanent, appurtenant improvement from which the original shoreline setback could be measured. Because it does not establish the setback distance, the construction of the new, expanded, above-grade deck is not within the grandfather clause of the SMO as an existing substandard use that would be allowed under the SMO and zoning code.

Giving, as we must, due regard to the plain meaning of the SMO and zoning code, a reasonable interpretation of the relevant provisions confirms that maintenance of existing substandard structures is allowed. However, as it relates to non-conforming use, any construction on existing grandfathered structures that increases the violation and promotes further encroachment of the shoreline is prohibited. We cannot say that Kadrie has shown that approval of the variance to construct the new above-grade deck is mandated. See Luger v. City of Burnsville, 295 N.W.2d 609, 612 (Minn. 1980) (property owner has the "heavy burden" to show approval of variance is appropriate).

We observe that the city has been fair in its dealings with Kadrie by permitting him to add on the kitchen overlooking the shore, despite the provisions of the SMO. We conclude, therefore, that the trial judge did not err in concluding that the added above-grade deck violated the non-conforming and substandard use provisions of the zoning code and the SMO. The order for removal of the structure is affirmed.

Affirmed.

[ ]1 The SMO defines "substandard use" as any use of shorelands existing prior to the date of enactment of any city ordinance which is permitted within the applicable zoning district, but does not meet the minimum lot area and length of water frontage, structure setbacks, or other dimensional standards of the ordinance.

The SMO defines "non-conforming use" as any use of land established before the effective date of the city ordinance which does not conform to the use restrictions of a particular zoning district.

[ ]2 This is the phrase applied by the trial court to describe more precisely the at-grade "deck" as she perceived it to be.