In re Appeal from Louis Cnty.

• Decision Date: 06 June 2016
• Docket Number: A15-1613
• Parties: In Re: Appeal from a decision on September 11, 2014 by the St. Louis County, Minnesota, Board of Adjustment Granting Variance as requested by Shawn Webster
• Court: Minnesota Court of Appeals

In Re: Appeal from a decision on September 11, 2014 by the St. Louis County,

Minnesota, Board of Adjustment Granting Variance as requested by Shawn Webster

A15-1613

STATE OF MINNESOTA IN COURT OF APPEALS

June 6, 2016

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).

Reversed and remanded to the county board for its reconsideration of the variance application

Connolly, Judge

Dissenting, Johnson, Judge

St. Louis County District Court

File No. 69DU-CV-14-2537

Eric S. Johnson, Robert R. Kanuit, Fryberger, Buchanan, Smith & Frederick, P.A., Duluth, Minnesota (for appellant Shawn Webster)

Robin C. Merritt, Kimberly E. Brzezinski, Hanft Fride P.A., Duluth, Minnesota (for respondents Michael J. Miller and Barbara Gnabasik)

Thomas G. Stanley, St. Louis County Attorney, Duluth, Minnesota (for respondent St. Louis County Board of Adjustment)

Considered and decided by Reilly, Presiding Judge; Connolly, Judge; and Johnson, Judge.

UNPUBLISHED OPINION

CONNOLLY, Judge

Respondent county board of adjustment granted appellant landowner an after-the-fact setback variance for his garage. Respondent neighbors appealed the board's decision in district court. The district court granted summary judgment to respondent neighbors, ordering appellant to remove or relocate his garage. Appellant challenges that decision, arguing that the board properly exercised its discretion in granting a variance and that the district court abused its discretion in granting injunctive relief. We reverse the district court's decision but remand to the board of adjustment for its reconsideration of the variance application.

FACTS

In July 2013, appellant Shawn Webster applied to St. Louis County for a land use permit to build a garage on his homestead property. The land use permit was granted. The St. Louis County Planning Department (SLCPD) told appellant when the permit was granted that the required property line setback was 15 feet. Appellant's proposal showed a property line 15-foot setback from the south property line and a 30-foot setback from the east property line. Relying on the permit, appellant commenced construction of the garage on August 13, 2013. Early in the construction process, appellant decided to move the structure north and east to avoid destroying several mature white pines in the southeast corner of the property. Intending to have a 15-foot setback from the east property line, as instructed by county zoning officials, appellant moved the garage. Appellant incorrectly measured from the east property line, and the building was 13.5 feet from the east property line instead of 15 feet. The final location of the garage was 43 feet from the south property line and 13.5 feet from the east property line. Appellant also changed the garage design to include a 16-foot by 20-foot section that was not included in the original permit request.

On July 9, 2014, appellant's neighbors to the east, respondents Michael Miller and Barbara Gnabasik (the neighbors), filed a complaint with the zoning office that the garage was in violation of the required side-yard setback. Appellant ceased construction on the garage, with the garage slab complete and all the structural steel in place. By this time, appellant had already spent $60,000 in partially constructing the garage. County officials then informed appellant, for the first time, that the actual required side yard setback was 25 feet, not 15 feet. Because of this mistake and the county's recommendation, appellant applied for an after-the-fact variance from the 25-foot setback requirement. On August 11, 2014, appellant spoke with a member of the SLCPD concerning the status of his variance application. The SLCPD member advised appellant that the zoning staff was going to recommend that the board of adjustment (the board) grant the variance request. Appellant asked if he could restart construction and the SLCPD member said yes. On September 11, 2014, the board held a variance hearing. The board recommended that the after-the-fact variance request for an accessory structure at a reduced yard setback be approved as long as certain restrictions were observed. In so recommending, the board concluded:

1. The variance request is not in harmony with the general purpose and intent of official controls. This structure does not meet setback requirements and there was suitable area to meet setbacks.

2. Practical difficulty has not been demonstrated in complying with the official control. There are alternative locations for placing the structure on the parcel that would meet zoning requirements. However, there was confusion as to the required setback distance of 25 feet from property lines and the applicant received a land use permit for a side property line setback of 15 feet in July 2013. In addition, the applicant has spent a good deal of time and money [$60,000] on the structure.

3. A circumstance unique to the property is that a portion of the applicant's southern property line was adjusted and sold to the neighbor to the south. . . . The additional acreage to the south could have provided more room in which to meet the setback requirements where originally proposed. The adjusted southern property line runs at an angle. However, the east property line location has not changed.

4. The variance will not alter the essential character of the locality. Accessory structures are an allowed use in a Multiple Use Non-Shoreland (MUNS) zone district. Due to the reduced east property line setback and slope that has been excavated, there may be potential stormwater or erosion issues. Negative erosion effects can be mitigated through conditions placed on the variance relating to stormwater and bank stabilization.

5. The construction was started in July [2013]. When the landowner discovered that the structure was not in compliance with the setbacks indicated on his original application, he stopped construction of the structure and applied for a variance. The applicant worked cooperatively with the county to seek resolution to this issue.

6. The county would not benefit by the enforcement of the ordinance if compliance were required because the applicant applied for and received a land use permit and has acted in good faith when it was found that the perceived 15 foot property line setback distances were not being met. It was not until the variance request was submitted that the required 25 foot setback was realized. The applicant believed they were varying by 1.5 feet when the variance is for 11.5 feet.

(Emphasis added). These conclusions were adopted verbatim and unanimously by the board of adjustment.

The neighbors appealed the decision of the board in district court, and the district court heard the parties' cross summary-judgment motions. The district court granted the neighbors' summary-judgment motion and overturned the board's variance approval. Thedistrict court also ordered that appellant remove or relocate the structure to a compliant location no later than December 1, 2015.

DECISION

"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." Kismet Investors, Inc. v. County of Benton, 617 N.W.2d 85, 90 (Minn. App. 2000), review denied (Minn. Nov. 15, 2000). "We examine the municipality's action to ascertain whether it was arbitrary and capricious . . . or whether the reasons given by the body were legally sufficient and had a factual basis." VanLandschoot v. City of Mendota Heights, 336 N.W.2d 503, 508 (Minn. 1983). 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. Id. 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.¹ Swanson v. City of Bloomington, 421 N.W.2d 307, 313 (Minn. 1988).

The board of adjustment shall have the exclusive power to order the issuance of variances from the requirements 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 and when the variances are consistent with the comprehensive plan. Variances may be granted when the applicant for the variance establishes that there are practical difficulties in complying with the official control. "Practical difficulties," as used in connection with the granting of a variance, means that the property owner proposes to use theproperty in a reasonable manner not permitted by an official control; 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 do not constitute practical difficulties.

Minn. Stat. § 394.27, subd. 7 (2014).²

This statute requires that: (1) the property owner proposes to use the property in a reasonable manner not permitted by an official control; (2) the plight of the landowner is due to circumstances unique to the property not created by the landowner; and (3) the variance, if granted, will not alter the essential character of the locality. Id.

In granting the variance, the board of adjustment stated that "[t]he variance request is not in harmony with the general purpose and intent of official controls . . . . Practical difficulty has not been demonstrated in complying with the official control." Despite the requirement of Minn. Stat. § 394.27, subd. 7, that "[v]ariances shall only be permitted when they are in harmony with the general purposes and intent of the official control and when the variances are consistent with the comprehensive plan" and that "[v]ariances may be granted when the applicant for the...