Ramsey County District Court

File No. C7-95-9245

Patrick J. Kelly, James J. Hanton, Bannigan & Kelly, P.A., 1750 North Central Life Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Richard E. Berger, 240 Chester Street, St. Paul, MN 55107 (for Appellants)

Considered and decided by Peterson, Presiding Judge, Willis, Judge, and Foley, Judge.

Appellants Henri and Lynn Valiukas challenge summary judgment in favor of respondent City of Maplewood for their failure to comply with certain conditions required to obtain a setback variance.

Maplewood zoning code § 36-71(a)(1) requires a 30-foot setback from any platted public street. In 1991, appellants applied for a building permit to construct a garage, deck, and addition to their home. The building permit application required an accompanying certified land survey and included a disclaimer that the City would not be responsible for errors in building placement.

Appellants failed to comply with the survey requirement and the City mistakenly issued the building permit without the required survey information. Subsequently, the garage and addition were built approximately 17 feet and 22 feet, respectively, from the road, in violation of the setback variance.

Sometime later, a dispute arose between the appellants and the Libbys regarding the use of the road/driveway, perhaps, through a misunderstanding that the road is public. In April 1993, the Libbys contacted the City to investigate appellants' garage and house addition for violation of the setback. After an investigation, the City informed appellants they were in violation of the setback. They then applied to the City for a variance from the setback requirement for their garage and house addition.

In January 1994, the City approved the setback variance subject to appellants' agreement to eight conditions. Appellants complied with all conditions except three: (1) erect two "No Parking or Stopping On the Driveway" signs along the driveway; (2) pay the Libbys $75 each year for snowplowing; and (3) sign a release agreeing to hold the City harmless from any claims that may arise from the driveway's use or maintenance.

In March 1994, the City notified appellants that they were in violation of the setback variance agreement and directed the matter to the City attorney. In September 1995, the City filed a complaint seeking to nullify the setback variance and to estop appellants from further use of the construction additions. In February 1996, the City moved for summary judgment. Concluding that the grant of the setback variance and the modifying conditions were valid and proper exercises of the City's police power, the trial court granted the motion for summary judgment.

if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to judgment as a matter of law.

Minn. R. Civ. P. 56.03. Summary judgment is inappropriate if reasonable people could draw different conclusions from the evidence. Illinois Farmers Ins. Co. v. Tapemark Co., 273 N.W.2d 630, 633 (Minn. 1978). On appeal from summary judgment, we ask "whether there are any genuine issues of material fact" and "whether the lower courts erred in their application of the law." State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). "The reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted." Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

Appellants argue that the conditions challenged here were arbitrary and capricious. They contend that the City cannot require them to share in the maintenance of the road, to erect safety signs, or require them to indemnify the City against any claims arising out of the construction or maintenance of the driveway.

Minn. Stat. § 462.357, subd. 6(2) (1994) provides in part:

The board of appeals and adjustments has the following powers with respect to the zoning ordinance: * * *

(2) To hear requests for variance from the literal provisions of the ordinance in instances where there strict enforcement would cause undue hardship because of circumstances unique to the individual property * * * The board or governing body, as the case may be, may impose conditions in the granting of variances to insure compliance and to protect adjacent properties.

"However, the authority does not have unlimited power with respect to the conditions that may be imposed, since its power is derived from and limited by, the zoning ordinance and state law." 101A C.J.S. § 197 (1978).

The conditions are required to be reasonable, that is, they must bear a reasonable relation to the public health, safety, and welfare, and they must be directly related and incidental to the proposed use of the property.

Id. (emphasis added). On review, this court will not invalidate a city's zoning variance decision if the city acted in good faith and within the broad discretion accorded it by statutes and ordinances. Its decision will only be reversed if the stated reasons are legally insufficient or without factual basis. Sagstetter v. City of St. Paul, 529 N.W.2d 488, 491 (Minn. App. 1995).

Referencing Minn. Stat. § 462.357, subd. 6, the trial court found that the City's grant of the setback variance was proper. The trial court then noted that deciding whether the conditions imposed by the variance were reasonable constituted a question of law. Except for the requirement that appellants pay their neighbors $75 per year for snowplowing, the trial court concluded that the other conditions "directly related to the use" of appellants' property and were "purposeful, rather than arbitrary and capricious." The trial court also noted that appellants agreed to the conditions, apparently under the mistaken belief that the roadway was private and that the conditions were necessary to obtain a variance.

We conclude that the evidence is such that the trial court's approval of the variance conditions at issue is in error. On review of the statutory authority, required conditions may be imposed to "ensure compliance and protect adjacent properties." However, implicit to this limitation is that the conditions assigned to the variance must have a nexus to the improvements for which the building variance was granted. See 101A C.J.S. §197 (1978).

We cannot say that the condition requiring appellants to indemnify the City has any relationship to the purpose of the setback variance. The City maintains that it has not abandoned or relinquished control of the public road that was platted and dedicated in 1941. The roadway, therefore, is not private property, and the City cannot seek to circumvent its legal responsibilities by exacting an agreement by way of imposing a condition to save the City harmless from claims that might arise through use of the public road in exchange for a building variance. There is no showing of bad faith on the part of appellants. Appellants may have made a mistake by not submitting a survey, but that error does not constitute bad faith.

While the roadway allows appellants ingress and egress to their property, installation of safety signs is the responsibility of the City and does not constitute a reasonable condition for granting a variance in this case. The requirement to place signs along the roadway is further evidence of the City's continued control over the road without any relationship to the purpose of the building variance, that is, the garage, deck, and addition to the home.

Lastly, we acknowledge that plowing of the roadway is necessary to allow appellants, their neighbors, and the public to enter upon and travel the road. However, snow removal is an obligation of the City when it involves a public road and may not be attached as a condition for a building variance. Accordingly, we conclude that the trial court's grant of summary judgment in favor of the City was in error. We direct that judgment be entered in accordance with this opinion, entitling appellants to full use of their property without the burden of the conditions argued here.

Reversed.

[ ]^* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.