This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2349

 

John Campbell, et al.,
Appellants,

vs.

The Wright County Board of Adjustment, et al.,
Respondents.

 

Filed September 6, 2005

Affirmed

Peterson, Judge

 

Wright County District Court

File No. CX033960

 

Gregory M. Miller, Jamie R. Pierce, Mansfield, Tanick & Cohen, P.A., 1700 US Bank Plaza South, 220 South Sixth Street, Minneapolis, MN  55402 (for appellants)

 

Paul D. Reuvers, Jason M. Hiveley, Iverson Reuvers, 9321 Ensign Avenue South, Bloomington, MN  55438 (for respondents)

 

            Considered and decided by Wright, Presiding Judge; Toussaint, Chief Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            This appeal is from a summary judgment rejecting appellant’s challenge to the Wright Count Board of Adjustment’s denial of appellant’s variance application.  We affirm. 

FACTS

            Appellants are siblings who own a cabin that their grandparents built during the 1940s on a lakefront lot in Wright County.   The cabin and lot do not meet the minimum lot size, minimum lot width, and setback requirements of the current Wright County Zoning Ordinance (WCZO).  In 2002, without obtaining a variance or a building permit, appellants built a 10- by 24-foot addition on the lake side of the cabin and a 450-square- foot deck that extends across the lake side of the cabin and along part of another side of the cabin.  The addition exacerbated the zoning-ordinance violations on the property.  The county told appellants that they needed a variance, appellants applied for a variance, the township recommended granting the variance with certain conditions, and after a hearing that was not recorded due to technical difficulties, the Wright Count Board of Adjustment (BOA) denied the variance.  

Appellants brought suit in district court seeking review of the denial.  When appellants sought discovery of all variance applications filed with the county in the last ten years, the county obtained a protective order in which the district court ruled that the county did not have to produce the applications and that only one member of the BOA could be deposed.[1] The district court granted the county’s motion for summary judgment, ruling, among other things, that (a) substantial evidence supported the BOA’s denial of appellants’ variance application; (b) appellants did not show that the county had granted variance applications that were similar to appellants’ application; and (c) the county did not deny appellants due process of law.  This appeal challenging the summary judgment and the protective order followed.

D E C I S I O N

            On appeal from a summary judgment, appellate courts

review whether there are any genuine issues of material fact and whether the district court erred in its application of the law.  We view the evidence in the light most favorable to the party against whom summary judgment was granted.  We review de novo whether a genuine issue of material fact exists.  We also review de novo whether the district court erred in its application of the law. 

 

STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76-77 (Minn. 2002) (citations omitted). 

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.  In determining reasonableness, we are guided by the standards set out in the relevant county ordinance, but a board’s authority to grant variances under the ordinance may not exceed the power granted by statute.  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. 

 

Kismet Investors, Inc. v. County of Benton, 617 N.W.2d 85, 90 (Minn. App. 2000) (citations omitted), review denied (Minn. Nov. 15, 2000).

            A variance applicant has the burden of showing that granting the variance is appropriate.  Luger v. City of Burnsville, 295 N.W.2d 609, 612 (Minn. 1980).  Under state statute,

[t]he board of adjustment shall have the exclusive power to order the issuance of variances from the terms of any official control including restrictions placed on nonconformities.  Variances shall only be permitted when they are in harmony with the general purposes and intent of the official control in cases when there are practical difficulties or particular hardship in the way of carrying out the strict letter of any official control, and when the terms of the variance are consistent with the comprehensive plan.  “Hardship” as used in connection with the granting of a variance means the property in question cannot be put to a reasonable use if used under the conditions allowed by the official controls; the plight of the landowner is due to circumstances unique to the property not created by the landowner; and the variance, if granted, will not alter the essential character of the locality.  Economic considerations alone shall not constitute a hardship if a reasonable use for the property exists under the terms of the ordinance.

 

Minn. Stat. § 394.27, subd. 7 (2004).  These requirements for granting a variance are included in the WCZO almost verbatim.  Wright County Zoning Ordinance § 502.2 (2003). 

I

Citing four other variances granted by the BOA, appellants argue that the BOA denied them equal protection of the law by requiring them, but not other variance applicants, to satisfy the WCZO’s requirements for granting a variance.  “Essential to a ruling that equal protection has been denied by discriminatory administration of the laws is a finding that the persons treated disparately are similarly situated.”  State by Spannaus v. Lutsen Resorts, Inc., 310 N.W.2d 495, 497 (Minn. 1981).  The district court concluded that the evidence about the other applicants[2] does not support a finding that the other applicants “are similarly situated to [appellants] in terms of lot size, hardship factors, or other relevant criteria.”  The record shows that appellants and the four variance applicants cited on appeal were not similarly situated for equal-protection purposes because the four variance applications involved construction that (a) was less extensive than appellants’ construction; (b) did not change the “footprint” of an existing structure; (c) had lesser violations, or did not exacerbate existing violations, of the WCZO[3]; or (d) a combination of these factors.   A lack of similarly situated persons is fatal to an equal-protection claim.  Kottschade v. City of Rochester, 537 N.W.2d 301, 307 (Minn. App. 1995), review denied (Minn. Nov. 15, 1995)[4].  Therefore, we affirm the district court’s rejection of appellants’ equal-protection argument. 

Furthermore, under the WCZO,

[t]he Board of Adjustment shall not grant a Variance unless it finds the following facts at the hearing where the applicant shall present a statement of evidence proving the following:

(1)       The granting of the Variance will not be in conflict with the Comprehensive Plan;

(2)       The property will not yield a reasonable return if used in compliance with this Ordinance;

(3)       The conditions causing the hardship are unique and are not shared by neighboring property in the same zone;

(4)       The granting of the Variance will not essentially alter the character of the neighborhood; and,

(5)       The granting of the Variance will not adversely affect the environmental quality of the area.

 

If the [applicant] fails to prove only one of the conditions, the Board of Adjustment cannot legally grant the Variance.  The burden of proof of these matters rests on the applicant.  He is requesting a special privilege, and it is incumbent upon him to prove that the conditions necessary for granting of the privilege are satisfied.

 

Wright County Zoning Ordinance § 502.3 (2003).

Appellants’ allegation that they were held to a higher standard than other variance applicants because the BOA did not require the other applicants to prove the requirements in section 502.3 is essentially an allegation that the BOA failed to properly enforce the WCZO against other variance applicants.  Because the BOA previously misapplied the WCZO by not requiring applicants to prove a hardship and the requirements in section 502.3, appellants are asking this court to require the BOA to continue misapplying the ordinance.  But “[a]n applicant for a variance is not entitled to a variance merely because similar variances were granted in the past.  Otherwise, the granting of one variance would likely result in the destruction of the entire zoning scheme.”  In re Variance Request of Johnson, 404 N.W.2d 298, 301 (Minn. App. 1987), overruled on other grounds by Myron v. City of Plymouth, 562 NW.2d 21 (Minn. App. 1997), aff’d without opinion, 581 N.W.2d 815 (Minn. 1998); see also Stotts v. Wright County, 478 N.W.2d 802, 806 (Minn. App. 1991) (applying Johnson to affirm district court’s rejection of equal-protection challenge to Wright County’s allegedly discriminatory denial of an application for a variance to allow construction of a deck), review denied (Minn. Feb. 11, 1992).  A “municipality cannot be estopped from correctly enforcing [an] ordinance even if the property owner relied to his detriment on prior city action.”  Franks’s Nursery Sales v. City of Roseville, 295 N.W.2d 604, 607 (Minn. 1980).  Therefore, because appellants did not prove their application met the requirements of section 502.3, and the BOA is required to deny a variance application when the applicant fails to prove any of the requirements in section 502.3, the BOA’s denial of appellants’ application was reasonable.

II

            Appellants argue that the district court’s statement in its conclusions of law that “[t]here is no persuasive evidence before the Court that [appellants’] request, if granted, would not alter the essential character of the locality” demonstrates that the district court incorrectly weighed the evidence, rather than viewing the evidence in the light most favorable to appellants.  Appellants contend that because the district court overstepped its authority, the summary judgment should be reversed.  Appellants also contend that the finding that the variance would alter the essential character of the neighborhood is clearly erroneous.

            Even if the district court’s reference to “persuasive evidence” demonstrates that the court weighed evidence, rather than viewing the evidence in the light most favorable to appellants, any error in doing so does not, by itself, provide a basis for reversing the summary judgment.  To obtain a variance, appellants needed to prove that all of the five requirements in section 502.3 were met; proving that granting the variance will not essentially alter the character of the neighborhood was only one of the five requirements.  Therefore, even if appellants proved that granting the variance will not essentially alter the character of the neighborhood, the BOA could still deny the variance if appellants failed to prove any of the four other requirements.

            The district court found, and the record shows, that the BOA considered all five of the requirements that must be met for the BOA to grant a variance under section 502.3 of the WCZO.  The BOA’s decision was not based on appellant’s failure to prove that granting the ordinance will not essentially alter the character of the neighborhood.  In fact, the BOA’s general findings of fact indicate that the BOA did not find that granting the variance will essentially alter the character of the neighborhood.  However, the BOA did find that the four other requirements of the ordinance were not met, which provided a basis for denying the variance.

III

Appellants argue that the district court erred in finding that the BOA’s findings were supported by the facts in the record.  Appellants contend that the BOA’s findings were conclusory at best and that no evidence was offered to support a denial of the variance.[5]  

The BOA specifically found that “[t]here is no hardship involved in this particular variance request.  The property was perfectly usable without the ten foot addition on the residence, and without the additional ten foot deck extension.”  The BOA also found that “[t]he proposed and existing additions result in a request that is not ‘reasonable’ under all the circumstances involved. . . . The residential cabin, as it existed, was already crowding the north property line and was already within 48 feet of the lake.”

The WCZO precludes granting a variance unless a “hardship” exists, and “hardship”

means the property in question cannot be put to a reasonable use if used under the conditions allowed by the official controls; the plight of the landowner is due to circumstances unique to his property, not created by the landowner; and the Variance, if granted, will not alter the essential character of the locality.  Economic considerations alone shall not constitute hardship if a reasonable use of the property exists under the terms of this Ordinance.

 

Wright County Zoning Ordinance § 502.2.  The BOA’s finding that there is no hardship involved in appellant’s variance request states a conclusion, but the conclusion is immediately followed by an explanation of the reason why the BOA reached that conclusion.  The finding plainly indicates that the BOA reasoned that under the WCZO, finding a “hardship” requires that the property cannot be put to a reasonable use under the existing controls.  The BOA then determined that because the property was perfectly usable without the addition and the deck, it could be put to a reasonable use under the existing controls.  Finally, the BOA determined that the addition and the deck on the lake side of the cabin are not a reasonable use of the property because the existing cabin violated the side-yard and lake-side setback requirements, and the addition and deck exacerbated the violations.  These finding are concise, but they are not conclusory.  They explain why the BOA concluded that appellants did not meet their burden of proving that the requirements for granting a variance were met.

The findings are also supported by the record.  There is no dispute that appellants used their property regularly before building the addition and the deck, which demonstrates that the property could be put to a reasonable use under the existing controls.  There is also no dispute that before the addition and deck were built, the cabin violated the setback requirements, and the addition and deck increased the violations.    

            Citing Rowell v. Bd. of Adjustment, 446 N.W.2d 917, 922 (Minn. App. 1989), review denied (Min. Dec. 15, 1989), appellants argue that the BOA improperly required them to demonstrate that their property cannot be put to any reasonable use without the variance.  In Rowell, this court interpreted the requirement that the property cannot be put to a reasonable use without the variance “as requiring a showing that the property owner would like to use the property in a reasonable manner that is prohibited by the ordinance.”  Id.  Simply concluding that there is no hardship because the property can be put to some reasonable use without a variance does not address whether the property owner is proposing a reasonable use that is prohibited by the ordinance.  But the BOA did not simply conclude that there is no hardship because appellants can put the property to some reasonable use without a variance; the BOA specifically considered appellant’s proposed use of the property and determined that the use was not reasonable because it exacerbated ordinance violations.  The BOA did not simply say that an addition and deck were not a reasonable use of the property; it said that an addition and deck in a particular location were not a reasonable use.

            We conclude that the finding of no hardship is not defective, and it is fatal to the variance application under Wright County Zoning Ordinance §§ 502-03.  It is not necessary to address the BOA’s other findings.

IV

A.         Procedural Due Process of Law

            Procedural due process of law requires that a party be provided a meaningful opportunity to be heard in a meaningful manner.  Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 902 (1976).  Appellants argue that they were denied procedural due process of law because the BOA was biased against them and its decision was not a reasonable decision based on the record.  We have already addressed whether the BOA’s decision was a reasonable decision based on the record.  Appellants contend that the BOA’s bias is demonstrated by the fact that the BOA required appellants, but not other variance applicants, to show the existence of hardship and the other variance factors listed in the WCZO.  But an applicant’s failure to prove hardship, or any other variance factor, precludes the BOA from granting a variance.  Wright County Zoning Ordinance § 502.3.  Thus, if other applicants did not show hardship, granting their variances may have been improper, but it does not demonstrate that appellants were denied procedural due process. 

            Appellants also argue that the BOA’s characterization of their actions as “egregious” simply because appellant John Campbell is a building contractor who “should have known better” influenced the BOA despite case law that provides that actual or constructive knowledge of a zoning ordinance is not a bar to granting a variance. 

In Myron, a property owner purchased a lot that was unbuildable because complying with setback requirements resulted in violating the minimum building-pad size.  562 N.W.2d at 22.  The city council denied the property owner’s requests for a variance based on its finding that the property owner was aware when he purchased the property that a variance was necessary to make the property buildable.  Id.  The council determined that this made any hardship relating to the owner’s use of the property self-created and outside the meaning of “undue hardship.”  Id.  This court held “that actual or constructive knowledge of a zoning ordinance before a purchase of land is not a bar to granting a variance” and reversed the denial of the variance and remanded to the city council for reconsideration of the property-owner’s variance application.  Id. at 23.  This court stated that “[t]he council may again deny the application, but the council must provide a justification other than that [the property owner] created the hardship himself by purchasing with knowledge of the zoning ordinance.”  Id. 

            Myron has no application to the facts of this case because the BOA did not deny appellants’ variance application simply because John Campbell knew about the WCZO before he built the addition and deck.  The BOA denied the variance application because it determined that building the addition and deck on the lake side of the cabin was not a reasonable use of the property.

Alleging that a member of the BOA said that the BOA was “going to make an example” of them, appellants also argue that the hearing before the BOA could not have been fair.  But because appellants failed to prove that they met all five of the requirements for obtaining a variance, the BOA was precluded from granting a variance.  Wright County Zoning Ordinance § 502.3.  Furthermore, an improper motive on the part of one member of a five-member board does not account for the BOA’s unanimous denial of the application. 

B.         Substantive Due Process of Law

            “[A] substantive due process claim in the zoning context exists, if at all, only in extraordinary situations and will not be found in ‘run-of-the-mill’ zoning disputes” because the government action must be “egregious.”  Northpointe Plaza v. City of Rochester, 465 N.W.2d 686, 690-91 (Minn. 1991).  Based on their claims that the BOA intended to make an example of them, that the BOA’s decision was solely based on the fact that John Campbell started construction prematurely and should have known better, and that they were the only variance applicants that were denied an after-the-fact variance, appellants argue that they were denied substantive due process of law.

            We have already addressed the weaknesses of each of these claims, and we have concluded that the BOA’s decision to deny appellants’ variance application was reasonable because appellants did not demonstrate that their application met all of the requirements for obtaining a variance.  It is not an egregious government action to deny a variance application that does not meet the requirements for a variance. 

V

            The district court granted the county’s motion for a protective order, ruling that the county did not need to produce the variance applications it received during the past ten years and that appellants were limited to deposing one member of the BOA.  Appellants challenge both limitations in the protective order. 

Generally, absent a clear abuse of its “broad discretion” regarding protective orders, a district court’s decision regarding a protective order will not be altered on appeal.  WDSI, Inc. v. County of Steele, 672 N.W.2d 617, 622 (Minn. App. 2003) (citing   Erickson v. MacArthur, 414 N.W.2d 406, 407, 409 (Minn. 1987)).  “Where the municipal proceeding was fair and the record clear and complete, review should be on the record,” but “[w]here the municipal proceeding has not been fair or the record of that proceeding is not clear and complete, [the rule recited in Honn v. City of Coon Rapids, 313 N.W.2d 409, 415-16 (Minn. 1981)] applies and the parties are entitled to a trial or an opportunity to augment the record in district court.”  Swanson v. City of Bloomington, 421 N.W.2d 307, 313 (Minn. 1988). 

            Appellants argue that the municipal proceedings were unfair, that the failure of the recording system during the hearing before the BOA resulted in the lack of a complete municipal record, and that they were entitled to supplement the record with the variance applications and depositions.  Under Honn, “[n]ew or additional evidence may be received at the trial, but it must be relevant to the issues that were raised and considered before the municipal body.”  Honn, 313 N.W.2d at 416.  Variance applications that are separated in time from appellants’ application cannot meet the similarly situated requirement for an equal-protection claim.  Stotts, 478 N.W.2d at 806.  Thus, case law supports the district court’s determination that appellants failed to show that production of the variance applications received over the past ten years was “reasonably calculated to lead to discovery of admissible evidence unavailable via some more convenient means.” 

            Finally, while appellants correctly note that Minn. R. Civ. P. 30.01 allows them to depose “any person,” Minn. R. Civ. P. 26.03 allows the district court, for “good cause,” to grant protective orders to protect a party from undue burden.  Appellants do not identify any information that they wanted to get from a BOA member other than the chair of the BOA that could not be obtained from the chair of the BOA and the written record.  Thus, appellants have not shown that the district court abused its discretion by allowing them to depose only one BOA member.

            Affirmed.