This opinion will be unpublished and

may not be cited except as provided by

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




County of Benton,



Nancy Marchetti,


Filed March 3, 1998


Mulally, Judge**

Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. Art. VI, § 10.

Benton County District Court

File No. C1951152

Michael S. Jesse, Benton County Attorney, Robert J. Raupp, Assistant Benton County Attorney, Courthouse, 531 Dewey Street, Foley, MN 56329 (for respondent)

Nancy Marchetti, 10734 West Lake Road, Rice, MN 56367 (pro se appellant)

Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Mulally, Judge.



Appellant Nancy Marchetti appeals from the trial court's grant of summary judgment in favor of Benton County contending that the governing statute and ordinance are unconstitutional, the denial of the variance was arbitrary and capricious, the trial court lacked jurisdiction, and she was denied due process of law. We affirm.


In September 1995, appellant applied to the Benton County Board of Adjustment for a variance to construct an attached garage on her property. At a hearing on her application, the board informed her that her home was a "nonconforming" structure and "tabled" her request and asked appellant to submit further information. In December 1995, after appellant had failed to provide any further information on her application, the county board denied appellant's request for a variance.

On October 27, 1995 an environmental technician for the county inspected appellant's property and discovered that appellant had begun construction of the garage. That same day, Benton County obtained a temporary restraining order forbidding appellant from building on her property and filed a civil action against her for an injunction and abatement. Later that month, another county environmental worker discovered that appellant had installed a septic tank on her property without a permit.

In July 1997, Benton County moved for summary judgment and the trial court granted the motion. The trial court ordered appellant to remove the garage and obtain a permit for her septic system. This appeal followed.


On appeal from summary judgment, where the material facts are not in dispute, a reviewing court need not defer to the trial court's application of the law. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn. 1989).

1. Constitutional Challenges

We find no merit in appellant's constitutional challenge to the Benton County Development Code § 4.2.1 (1995). That provision prohibits the extension, expansion, or enlargement of any nonconforming use or structure. It does not however, as appellant contends, require property owners to live in structurally unsafe residences. Moreover, the Minnesota Supreme Court has upheld the constitutionality of nonconforming structure statutes and we find no reason to depart from its holding. See County of Freeborn v. Claussen, 295 Minn. 96, 99, 203 N.W.2d 323, 325 (1972) ("[a] residential zoning ordinance may constitutionally prohibit the creation of uses which are nonconforming" and may prohibit the expansion and enlargement of preexisting nonconforming uses).

Appellant's constitutional challenge to Minn. Stat. § 394.37, subd. 3 (1996), is procedurally barred because she failed to notify the attorney general of this appeal. Minn. R. Civ. App. P. 144; Swelbar v. Lahti, 473 N.W.2d 77, 79 (Minn. App. 1991) (stating that, "[a]s a general rule, the Minnesota appellate courts refuse to consider questions of constitutionality when the attorney general has not been notified"). Nonetheless, appellant's challenge lacks merit. There is no evidence to support appellant's contention that the statute violated her due process rights.

2. Denial of the Variance

Appellant contends that the board's denial of the variance was arbitrary and capricious. This court defers to the broad discretion of the zoning board in denying variances and limits its review to determining whether the board's decision was based on legally sufficient reasons. Stotts v. Wright County, 478 N.W.2d 802, 806 (Minn. App. 1991), review denied (Minn. Feb. 11, 1992).

Appellant argues that the board treated her unfairly because other similarly situated landowners were granted variances and she was not. Appellant merely asserts that all landowners on her lake are similarly situated. Her contention is based on bold assertions and is not supported by specific facts or authority. See Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) (assignment of error based on "mere assertion" and not supported by argument or authority is waived unless error is obvious).

The board's denial of the variance is supported by law. When appellant appeared before the board on her application for the variance, she was told that she needed to submit further information to enable the board to make its decision. Appellant never submitted the information and the board denied her variance. It is clearly within the board's authority to deny a variance when the applicant fails to comply with its request for further information.

3. Judicial Error

Appellant argues that the trial court erred in finding that she failed to demonstrate hardship within a reasonable time of her request for a variance. It is undisputed that appellant failed to provide the requested information to the board. Thus, the trial court's statement is supported by the facts.

4. Jurisdiction

We find no merit in appellant's contention that the trial court did not have jurisdiction to hear her case. The trial court correctly found that Minn. Stat. § 394.37 (1996) provided it with jurisdiction over the case. Moreover, the Minnesota Administrative Procedure Act (MAPA) does not apply to a county board. Minn. Stat. § 14.02, subd. 2 (1996). Thus, the county was not obligated to exhaust administrative remedies before instituting an action in district court.

5. Due Process

Appellant contends that summary judgment deprived her of her right to due process. Appellant's claims rest purely on legal determinations that were properly decided by the trial judge. Thus, appellant's right to due process was not violated.