This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Robert Ward, petitioner,



Itasca County Board of Adjustment,


James Humeniuk,


Frito-Lay, Inc.,


Filed September 8, 1998


Kalitowski, Judge

Itasca County District Court

File No. C5951359

Gerald J. Brown, Brown, Andrew, Signorelli & Zallar, P.A., 300 Alworth Building, 306 West Superior Street, Duluth, MN 55802 (for appellant)

James R. Andreen, Erstad & Riemer, P.A., 1000 Northland Plaza, 3800 West 80th Street, Bloomington, MN 55431; and

John Muhar, Itasca County Attorney, Michael J. Haig, Assistant County Attorney, 123 NE Fourth Street, Grand Rapids, MN 55744 (for respondent Itasca County Board of Adjustment)

Rodney G. Otterness, Kent E. Nyberg Law Office, Ltd., 20 NE Fourth Street, Suite 101, Grand Rapids, MN 55744 (for respondent James Humeniuk)

Considered and decided by Schumacher, Presiding Judge, Randall, Judge, and Kalitowski, Judge



Appellant Robert Ward challenges the order of the district court upholding the Itasca County Board of Adjustment's determination that: (1) the county zoning officer properly declined to reinvestigate respondent James Humeniuk's use of his property; and (2) Humeniuk's operation of a storage warehouse on his property was a permitted use under the applicable county zoning ordinances. We affirm.


This matter has previously been before this court. See Ward v. Itasca County Board of Adjustment, No. C7-95-2400 (Minn. App. July 9, 1996). The present appeal involves the continuing dispute between neighboring property owners regarding the county's issuance of a permit to Humeniuk, approving the operation of a storage warehouse on his property, which was zoned "farm residential." Subsequent to the issuance of the permit, Humeniuk leased the warehouse to Frito-Lay, Inc. (Frito-Lay).

Where the municipal proceedings were both "fair and complete," the review conducted by this court will be on the record that was before the municipal agency. Sagstetter v. City of St. Paul, 529 N.W.2d 488, 490-91 (Minn. App. 1995). In reviewing a zoning case, this court undertakes an independent examination of the issues, without giving any special deference to the review conducted by the trial court. Honn v. City of Coon Rapids, 313 N.W.2d 409, 415-16 (Minn. 1981).

The appropriate standard of review in zoning matters is

whether the zoning authority's action was reasonable. Our Cases express the standard in various ways: Is there a "reasonable basis" for the decision? or is the decision "unreasonable, arbitrary, or capricious"? or is the decision "reasonably debatable"?

Northwest Residence, Inc. v. City of Brooklyn Center, 352 N.W.2d 764, 767 (Minn. App. 1984), review denied (Minn. Jan. 4, 1985) (quoting Honn, 313 N.W.2d at 417). In other words, a reviewing court should only set aside routine municipal decisions in those rare instances in which the decision has no rational basis. White Bear Docking and Storage, Inc. v. City of White Bear Lake, 324 N.W.2d 174, 176 (Minn. 1982).

An exception to this deferential standard of review accorded municipal bodies in zoning decisions is that the interpretation of an existing ordinance is a question of law for the court. Frank's Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn. 1980). This court may conduct a de novo review where the interpretation of a municipality's zoning ordinance is at issue. State by Minneapolis Park Lovers v. City of Minneapolis, 468 N.W.2d 566, 568 (Minn. App. 1991), review denied (Minn. July 24, 1991). While the opinions of a governmental authority on questions of law are entitled to some consideration, they are not as persuasive as they would be on questions of fact. Frank's Nursery, 295 N.W.2d at 608. In Frank's Nursery, the Minnesota Supreme Court concluded

where the question is whether an ordinance is applicable to certain facts, the determination of those facts is for the governmental authority, but the manner of applying the ordinance to the facts is for the court.



On December 18, 1996, the Itasca County Board of Adjustment (BOA) held a public hearing, conducted pursuant to the peremptory writ of mandamus issued by the district court on remand from this court. As a result of this hearing, BOA first determined that it had the discretion to decide whether the Itasca County Zoning Officer Terry Greenside (Greenside) must conduct a reinvestigation of Humeniuk's property. In its findings, BOA stated:

Mr. Greenside properly refused to honor Mr. Ward's request because neither Section 11.62 nor Minn. Stat. 394.27, Subdivision 5 nor Article 19 (prescribes administrative duties of the county's zoning officer) nor any other section command reinvestigation and rehearing the claims submitted by Mr. Ward on May 5, 1995 that reasonably appeared to duplicate those he unsuccessfully asserted in the earlier proceedings.

BOA correctly determined that there are no applicable ordinances or statutes mandating that it require zoning officials to reinvestigate the use of property that has already been investigated and found lawful as used.

BOA then conducted a thorough review of the facts surrounding Ward's initial appeal of Greenside's granting of the permit and entered detailed factual findings with respect to its first investigation. An independent review of the record demonstrates: (1) Ward's July 8, 1994, letter to the Itasca County Zoning Department, asking that Humeniuk's permit be revoked and that he be required to use and develop his land in a manner consistent with the zoning ordinance, prompted a BOA hearing pursuant to Itasca County, Minn., Zoning Ordinance, art. II, § 11.62; (2) in addition to conducting a hearing on August 25, 1994, board members visited Humeniuk's property; and (3) after taking evidence and hearing testimony regarding the current use of Humeniuk's property, BOA affirmed Greenside's issuance of Humeniuk's permit, finding it to have been properly issued. At this hearing, BOA concluded:

Mr. Greenside had investigated and determined the lawfulness of the uses in his administrative capacity as the county's zoning officer.

Having already investigated said uses in 1994, and there being no "new uses" claimed by Mr. Ward in May, 1995, neither Sections ll.62, or Article 19 Ordinance, nor Minn. Stat. 394.27, Subdivision 5, nor any other section commands "reinvestigation" on the part of Mr. Greenside.

Mr. Greenside properly refused to honor Mr. Ward's reinvestigation and enforcement claims made May 5, 1995.

We conclude the evidence in the record shows that BOA had a rational basis for determining Greenside had properly refused to reinvestigate Humeniuk's use of the property because the zoning body had already conducted such an investigation and Ward had not raised new complaints in his second request for investigation of the property.


Whether Humeniuk's use of his property was lawful under the applicable zoning ordinances involves the interpretation of various provisions of Itasca County Zoning Ordinances. This is a question of law for the court's independent review. Frank's Nursery, 295 N.W.2d at 608.

In interpreting zoning ordinances, there are three rules of construction to guide the court:

1) Ordinances' terms should be construed according to their plain and ordinary meanings; 2) Zoning ordinances should be construed strictly against the city [or other municipal body] and in favor of the property owner; and 3) Zoning ordinances must be considered in light of their underlying policy goals.

Medical Servs., Inc. v. City of Savage, 487 N.W.2d 263, 266 (Minn. App. 1992) (citing Frank's Nursery, 295 N.W.2d at 608-09).

The first rule of construction requires that ordinance terms be interpreted according to their plain and ordinary meaning. Frank's Nursery, 295 N.W.2d at 608. Humeniuk applied for a permit to operate a commercial storage warehouse for food on his property located in Itasca County. The property on which Humeniuk sought to build and operate the warehouse was zoned "farm residential." Itasca County's Zoning Ordinance defines "farm residential" as

[a]reas having year round public services primarily for agricultural, forestry, and residential uses and where because of the excess cost of providing urban type services, a low density population should be maintained and rural standards prevail.

Itasca County, Minn., Zoning Ordinance, art. II, § 2.70 (1993). The ordinance designates a "storage warehouse" as a permitted use of land zoned "farm residential." Itasca County, Minn., Zoning Ordinance, art. II. Further, not only does the definition of "farm residential" not exclude uses involving a storage warehouse, but it would appear that public services for agriculture may require some forms of storage warehouses. Although the term "storage warehouse" is not defined in the ordinance, its plain and simple meaning does not exclude the storage of products transported to and retrieved from the warehouse.

The second rule of construction is that zoning ordinances should be construed strictly against the municipality and in favor of the property owner, especially where a term is susceptible to various interpretations that may be more or less restrictive in scope. Frank's Nursery, 295 N.W.2d at 608. The least restrictive interpretation of the term "storage warehouse" comports with the use Humeniuk is making of his warehouse. Because Frito-Lay is engaged in the business of selling products with a relatively short shelf life, it must frequently retrieve its products from storage. It is Ward's contention that this high volume of delivering and retrieving of snack products turns the storage warehouse into a "commodities distribution center," a term neither defined nor referred to in the ordinance.

Although we conduct an independent examination of a county's zoning ordinance, it is not our function to insert terms into an ordinance. Therefore, we will not find that the volume of use of this warehouse has turned it into a "commodities distribution center." Such action would result in this court performing a legislative function for the county.

Ward also contends that the use of Humeniuk's property amounts to an unlawful "industrial use." This term is defined by the Itasca County Zoning Ordinance as "the use of land or buildings for the production, manufacture, warehousing, storage, or transfer of goods, pro[du]cts, commodities or other wholesale items." Itasca County, Minn., Zoning Ordinance, art. II, § 1.061. While this definition may encompass some of the activities for which Humeniuk's property is used, it does not make such activity unlawful for land zoned "farm residential," which already specifically allows certain "industrial" activities such as "warehousing."

Some of the other permitted uses of land zoned "farm residential" include: (1) Recycling Collection Facility; (2) Florist, Greenhouse & Nursery (Sales); and (3) Mineral Exploration. Itasca County, Minn., Zoning Ordinance, art. II. All of these uses would necessarily involve traffic to and from the site, as does a storage warehouse.

Regarding the third rule of construction, we do not find any applicable policy considerations to factor into our interpretation of the relevant ordinances. Therefore, when interpreting "storage warehouse" according to its plain and ordinary meaning and in the least restrictive sense, most favorable to Humeniuk, we conclude the BOA properly determined the operation of the storage warehouse on Humeniuk's property is a "permitted use" under the applicable Itasca County Zoning Ordinances.


Two days prior to the December 18, 1996, BOA hearing held pursuant to a peremptory writ of mandamus, Ward attempted to argue that the warehouse, as constructed, violated the Shoreland Management Act. Because there was no reference to this issue in Ward's previous appeal to this court, the peremptory writ of mandamus also made no mention of this issue. Therefore, we conclude BOA properly rejected any consideration of this new issue at its hearing. Further, because this issue has not been addressed or briefed below, evidence from which to render a decision is lacking.