A05-1358

Thomas Borresch, et al.,

Respondents,

vs.

Stearns County, by and through its

Planning Commission,

Appellant,

Stearns County Board of Adjustment,

Respondent Below.

Filed May 10, 2006

Reversed

Willis, Judge

Stearns County District Court

File No. C6-04-1736

Frank J. Kundrat, Kundrat Law Office, P.A., 919 West St. Germain, Suite 2000, St. Cloud, MN 56301 (for respondents)

Richard J. Kruger, Carlson & Soldo, P.L.L.P., 1052 Centerville Circle, Vadnais Heights, MN 55127 (for appellant)

Considered and decided by Willis, Presiding Judge; Kalitowski, Judge; and Stoneburner, Judge.

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

WILLIS, Judge

This is an appeal from the district court’s reversal of appellant county’s denial of respondents’ application for a zoning variance. Because the reconstruction work that respondents propose for their boathouse requires a zoning variance and because respondents fail to show that a zoning variance is justified, we reverse.

FACTS

Sometime before January 9, 2004, respondents Thomas and Rhonda Borresch began construction work on an existing boathouse and woodshed and on a sewage-treatment system, all of which are located on their property on Horseshoe Lake in Munson Township, Stearns County. In January 2004, David Knafla, an employee of Stearns County Environmental Services (SCES), sent the Borresches a letter stating that SCES staff had observed what appeared to be new construction on their property that required permits from both appellant Stearns County and from Munson Township, and requesting that the Borresches contact SCES. Approximately two weeks later, Knafla sent the Borresches an application for a construction-site permit and an application for the zoning variance necessary for the construction work on the boathouse, and told them that all construction should stop “until this matter is resolved.” In February 2004, the Borresches submitted applications to SCES for a construction permit and a zoning variance.

In March 2004, the Board of Adjustment (BOA) of Stearns County held a public hearing at which it considered the Borresches’ application for a variance from the requirements of sections 5.1.2C(3), 6.2.1A, and 10.2.11E of the Stearns County Land Use and Zoning Ordinance in order to alter their boathouse. The BOA denied the Borresches’ application. The Borresches appealed to the district court, arguing that they want only to “repair the existing boathouse” by “fixing the roof, re-siding and straightening out the outside walls that were misshapen, and restoring the boathouse to its original dimensions”; that these activities do not constitute an addition, alteration, or structural alteration, all of which are prohibited by the zoning ordinance; and that, therefore, this work does not require a zoning variance. Stearns County claimed that (1) the Borresches should not have been allowed to argue for the first time on appeal to the district court that they were not required to obtain a zoning variance; (2) the record supports the requirement of a zoning variance; and (3) the record supports the BOA’s denial of the Borresches’ application for a variance.

The district court concluded that the Borresches “were not required to request a variance prior to making the repairs to their boathouse” and that the BOA “did not have the authority to prohibit the repairs made to the boathouse,” and reversed the BOA’s decision. Stearns County now appeals.

D E C I S I O N

Stearns County claims that the Borresches “asserted for the first time in their appeal to the district court that they did not need a zoning variance for the work that they were performing on their boathouse” and that because the Borresches did not raise this argument before the BOA, “[t]he district court should never have even considered [it].” We review a local zoning authority’s decisions independently from a district court’s review of the same record. See City of Barnum v. County of Carlton, 394 N.W.2d 246, 248 (Minn. App. 1986), review denied (Minn. Dec. 17, 1986). Therefore, we construe Stearns County’s claim to be that this court should not consider the Borresches’ argument because they did not raise it before the BOA. Generally, we will not consider issues that were not raised to a local zoning authority. See Graham v. Itasca County Planning Comm’n, 601 N.W.2d 461, 468 (Minn. App. 1999) (concluding that appellant “waived the issue by failing to raise it to the board”); Rowell v. Bd. of Adjustment of the City of Moorhead, 446 N.W.2d 917, 920 (Minn. App. 1989) (concluding that because appellant “failed to raise the issue at the public hearings, despite the fact that he had legal representation and an opportunity to speak at the public hearings,” appellant was “estopped from raising these issues in a lawsuit”), review denied (Minn. Dec. 15, 1989).

Review of the transcript of the BOA hearing shows that, although the Borresches, who appeared pro se at the hearing, did not specifically argue that the work they intended to do on the boathouse did not require a zoning variance, most of the discussion at the hearing concerned the nature of the work that the Borresches intended to do and why that work required that they first obtain a zoning variance. Based on the record, we conclude that the issue of whether a zoning variance was required was raised, discussed, and decided at the BOA hearing. Therefore, we will consider the Borresches’ argument that a zoning variance is not required for the proposed reconstruction work on their boathouse.

II.

Appellate review of zoning decisions is limited to determining whether the local zoning authority’s action was reasonable. Honn v. City of Coon Rapids, 313 N.W.2d 409, 416-17 (Minn. 1981); see also Nolan v. City of Eden Prairie, 610 N.W.2d 697, 701 (Minn. App. 2000) (examining a local zoning authority’s decision to determine whether it was arbitrary or capricious, or whether the reasons given for the decision are legally sufficient and have a factual basis), review denied (Minn. July 25, 2000). We will set aside the local zoning authority’s decision if the decision is unreasonable, and reasonableness is measured by the standards set out in the zoning ordinance. Rowell, 446 N.W.2d at 921.

Zoning-Variance Requirement

Stearns County argues that the record shows that the Borresches “were attempting to make alterations to a nonconforming structure” that require a variance under the Stearns County Land Use and Zoning Ordinance. The Borresches concede that their boathouse is a nonconforming structure but argue that the work that they propose, including the “shoring up” of the existing outer walls with “buffalo board,” installing steel siding onto those boards, “beefing up” the rafters, and “re-roofing” the boathouse, does not constitute an “alteration” or “structural alteration,” as those terms are defined in the zoning ordinance, and that, therefore, a variance is not required.

The interpretation and application of a zoning ordinance are questions of law. Frank’s Nursery Sales, Inc., v. City of Roseville, 295 N.W.2d 604, 608 (Minn. 1980). Three rules of construction guide our interpretation of a zoning ordinance: (1) the ordinance’s terms should be construed according to their plain and ordinary meanings; (2) the ordinance should be construed strictly against the zoning authority and in favor of the property owner; and (3) the ordinance must be considered in light of its underlying policy goals. Id. at 608-09.

Neither party disputes that sections 5.1.2C(3), 6.2.1A, and 10.2.11E of the Stearns County Land Use and Zoning Ordinance apply to the Borresches’ boathouse because (1) it is a “boathouse” as defined by the ordinance; (2) it is a nonconforming structure because it is on a tract of land with more than two existing accessory structures; and (3) it is in the “shore impact zone” of the “Shoreland Overlay District” of Stearns County. Under section 5.1.2C(3), “[a]ny addition or alteration to a nonconforming structure that is located wholly or partly within the shore impact zone shall not be allowed.” Under section 10.2.11E, “[b]oathouses and additions or alterations thereto are prohibited.” But under section 5.1.2A(3), “[n]ormal maintenance, including non-structural maintenance and repair, except structural alteration of a nonconforming structure, is permitted.” The ordinance defines “alteration” as “[a]n increase in the height or depth of a building.” Stearns County, Minn., Land Use and Zoning Ordinance § 3.2.9 (2000). And “structural alteration” is defined as “[a]ny change in the supporting members of a building, such as bearing walls, columns, beams or girders.” Id., § 3.2.171 (2000).

Here, the record suggests that the Borresches intend essentially to build a new building around the outside of their existing boathouse, necessarily increasing its depth. The proposed work also includes placing a new roof over the existing one, and Knafla testified at the BOA hearing that the rafters that the Borresches proposed to add would increase the height of the boathouse. Because the Borresches’ proposed reconstruction would result in an increase in the height and the depth of the boathouse, it constitutes an “alteration.” The record also shows that the Borresches’ proposed reconstruction activities, the “beefing up” of rafters or the use of trusses, the “shoring up” of the outer walls of the boathouse with buffalo board, and the installation of steel siding on those walls, constitute “structural alterations” because they involve a “change in the supporting members of a building.” To the extent that “change” means “to cause to be different,” the intended work on the boathouse changes the supporting walls and rafters of the boathouse by adding materials to these supporting members and thereby making them stronger, straighter, and, presumably, longer-lasting. See The American Heritage Dictionary 319 (3d ed. 1992) (defining “change” as “to cause to be different”).

We conclude that the proposed work on the boathouse requires a variance from the terms of the Stearns County Land Use and Zoning Ordinance. This conclusion is consistent with the underlying policy goals of the zoning ordinance, including: (1) “[c]onserving natural and scenic areas of the County”; (2) “[c]onserving natural resources and open space”; and (3) “[p]roviding official controls to implement the goals and policies in the Stearns County Comprehensive Plan.” Stearns County, Minn., Land Use and Zoning Ordinance § 1.2.D-F (2000). The Stearns County comprehensive plan is not part of the record, but at the BOA hearing, a board member stated that “[t]he idea of the ordinance, as I understand it, is to eventually eliminate boathouses.” Later, another member stated:

The idea of the ordinance is that [nonconforming structures] will go away. That eventually, we’ll have shorelines that are clear back a hundred feet. O.K., there’s a lot of houses that aren’t a hundred feet away from the shoreline right now. They are not allowed to improve or change. They’ll go to dilapidation and then they’ll be gone. That’s this concept. It’ll take a hundred years, but that [is] the concept. That’s what people wanted and that’s what we have in place now.

Interpreting the ordinance to prohibit the “shoring up” and re-siding of the outer walls of the boathouse and the strengthening of rafters is consistent with the policy goals of the ordinance as the BOA members describe them because the changes to the Borresches’ boathouse would likely make it last longer.

The Borresches also argue that the proposed reconstruction is not “considered to be an addition to a nonconforming structure.” But because we have concluded that the reconstruction involves alterations and structural alterations, we need not determine whether it also constitutes an addition under the zoning ordinance.

Denial of Zoning-Variance Application

A local zoning authority has broad discretion in denying variances. Kismet Investors, Inc., v. County of Benton, 617 N.W.2d 85, 90 (Minn. App. 2000), review denied (Minn. Nov. 15, 2000). This court reviews a local zoning authority’s exercise of its discretion to determine whether it was reasonable. Id. The fact that we may have arrived at a different conclusion does not invalidate the judgment of a local zoning authority if it acted in good faith and within the broad discretion accorded it by statutes and the relevant ordinances. See VanLandschoot v. City of Mendota Heights, 336 N.W.2d 503, 509 (Minn. 1983).

A local zoning authority has “exclusive power to order the issuance of variances from the terms of any official control including restrictions placed on nonconformities.” Minn. Stat. § 394.27, subd. 7 (2002). But variances shall be permitted only (1) “when they are in harmony with the general purposes and intent” of the zoning ordinance; (2) “in cases when there are practical difficulties or particular hardship in the way of carrying out the strict letter” of the zoning ordinance; and (3) “when the terms of the variance are consistent with the comprehensive plan.” Id. “Hardship” means that the property “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.” Id. But “[e]conomic considerations alone shall not constitute a hardship if a reasonable use for the property exists under the terms of the ordinance.” Id.

A landowner applying for a variance has the burden of showing that the variance is justified. Kismet Investors, Inc., 617 N.W.2d at 90. At the BOA hearing, Thomas Borresch testified that without a variance he could not continue to use the boathouse for the storage of boats because its roof leaked and that he needs to continue to use the boathouse to store his boats because his wife’s parents, who use the home and boathouse in the summer months, would not be able to transport a boat to the water from a structure that is farther from the lake. The BOA made findings that (1) the issuance of the requested variance would not be in keeping with the spirit and intent of the ordinance or comprehensive plan, which allow for the Borresches to maintain but not alter their boathouse; (2) there were no circumstances unique to the property that made compliance with the ordinance difficult or impossible; and (3) the Borresches were not deprived of a reasonable use of the property as that use relates to the ordinance because they could still use the boathouse for the storage of boats. The record shows that the county would allow the Borresches to re-shingle the existing boathouse roof. Because the record supports the BOA’s findings and because the Borresches fail to show that a zoning variance is justified, we conclude that the BOA’s denial of the variance was reasonable, and we reverse the district court’s order.

Reversed.