Steve Hill, et al., Appellants, vs. Wright County Board of Adjustment, et al., Respondents.

Steve Hill, et al., Appellants, vs. Wright County Board of Adjustment, et al., Respondents. A05-346, Court of Appeals Unpublished, November 29, 2005.

This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-346

 

Steve Hill, et al.,

Appellants,

 

vs.

 

Wright County Board of Adjustment, et al.,

Respondents.

 

Filed November 29, 2005

Affirmed Worke, Judge

 

Wright County District Court

File No. C5-03-3588

 

Bruce Grostephan, Peterson, Engberg & Peterson, 700 Old Republic Title Building, 400 Second Avenue South, Minneapolis, MN 55401 (for appellants)

 

Jay Squires, Ratwik, Roszak & Maloney, P.A., 300 U.S. Trust Building, 730 Second Avenue South, Minneapolis, MN 55402 (for respondents)

 

            Considered and decided by Worke, Presiding Judge; Hudson, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

            On appeal from summary judgment dismissing appellants' challenge to respondents' denial of appellants' zoning application to sell a lot independently from any other lot, appellants argue that (1) respondents failed to comply with Minn. Stat. § 15.99 (2004); (2) the denial of their application was unreasonable and arbitrary; (3) the denial constitutes a "taking" of their land; and (4) they were denied equal protection of the law.  We affirm.

FACTS

            On July 10, 2003, appellants Steve Hill and French Lake Land, LLC submitted a zoning application to respondents Wright County Board of Adjustment to "transfer or sell [two lots composing Tract B on the attached survey] independently from any other lot."  Tract B totals 16,326 square feet and has shoreline access on Lake Sylvia.  In 1978, respondents had declared Tract B unbuildable for any family dwellings and placed a deed restriction on the property proscribing a sewer system and permanent residential structures. 

            On July 14, 2003, appellants were notified that their application was incomplete because a survey was not attached and no reasons were given for the request.  Appellants submitted a survey two days later.  On August 8, 2003, respondents considered appellants' request and mailed notice to appellants indicating:

[Y]our item heard on August 8, 2003 was continued to September 12, 2003 . . . . The reason for the continuance is:  County Attorney to review application and advise the Board.  Your continued hearing will extend the final decision on your request beyond 60 days from your fully completed application.  By law, this is your notice under Minn. Stat. [§]15.99[,] [s]ubd. 3(f) that additional time is needed by the Board of Adjustment to make a decision, up to an additional 60 days. 

 

            On September 12, 2003, respondents again considered appellants' request.  It was noted that Tract B was contiguous with Tract A, a 3.4-acre parcel also owned by appellants.  Under Wright County Zoning Ordinance (WCZO) § 404 (2003), lots that are less than 20,000 square feet are not saleable if the owner has contiguous lots.  Appellants' attorney suggested that Tracts A and B were not contiguous and that appellants intended to sell Tract B with Tract C, another 20-acre parcel owned by appellants.  Respondents unanimously determined that Tract B was unbuildable and to keep it in joint ownership with Tract A.  The county attorney was directed to prepare findings consistent with the board's determination for adoption at an October 10 hearing. 

            Thereafter, respondents sent notice to appellants advising: "your item heard on September 12, 2003 was continued to October 10, 2003 . . . . The reason for the continuance is:  Findings to be drafted and adopted consistent with denial of the request."  Respondents met on October 10 and denied appellants' request.  The same day, appellants were provided written findings and reasons for the denial, as well as the September 12 meeting minutes.    Appellants brought suit in district court challenging the denial.  After a hearing, the district court granted respondents' motion for summary judgment and this appeal follows. 

D E C I S I O N

On appeal from summary judgment, this court determines whether any genuine issues of material fact exist and whether the district court erred as a matter of law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  This court views the evidence in the light most favorable to the party against whom summary judgment was granted.  Fabio v. Bellamo, 504 N.W.2d 758, 761 (Minn. 1993).  Summary judgment is appropriate when a party fails to make a showing sufficient to establish the existence of an element essential to the party's case, Bersch v. Rgnonti & Assocs., Inc., 584 N.W.2d 783, 786 (Minn. App. 1998), review denied (Minn. Dec. 15, 1998), or "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party."  DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (alteration in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986)).   

Respondents complied with Minn. Stat. § 15.99 (2004)

           Appellants argue that the district court erroneously determined that respondents complied with Minn. Stat. § 15.99 (2004).  This court reviews de novo the district court's interpretation of the law, including questions of statutory interpretation.  Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn. 1990).

           a.  60-day time limit

           Appellants argue that their application should be approved because respondents failed to deny their request within the 60-day time limit.  "[A]n agency must approve or deny within 60 days a written request relating to zoning . . . . Failure of an agency to deny a request within 60 days is approval of the request."  Minn. Stat. § 15.99, subd. 2(a).  The agency's 60-day time limit begins upon the agency's receipt of a written request containing all required information.  Minn. Stat. § 15.99, subd. 3(a).  However, the agency may extend the 60-day time limit "before the end of the initial 60-day period by providing written notice of the extension to the applicant.  The notification must state the reasons for the extension and its anticipated length, which may not exceed 60 days unless approved by the applicant."  Minn. Stat. § 15.99, subd. 3(f). 

           Respondents were required to act within 60 days of appellants' July 10, 2003 application, but respondents' August 8 written notice provided that they would require up to an additional 60 days.  Appellants argue that respondents were then required to act within 60 days of the August 8 notice.  However, the notice did not state that respondents would approve or deny the application within 60 days from the date of the notice, and appellants' interpretation of Minn. Stat. § 15.99, subd. 3(f) would interrupt and cut short respondents' initial 60-day period.  Further, Minnesota courts have interpreted the time in which to render a decision to no longer than 120 days. 

           In Moreno v. City of Minneapolis, 676 N.W.2d 1, 5 (Minn. App. 2004), this court referred to the time limit in Minn. Stat. § 15.99 by stating: "The time limit in subdivision 2 may be extended up to a total of 120 days if, before the end of the initial 60-day period, the city provides written notice of the extension to the applicant."  Cf. Manco of Fairmont, Inc. v. Town Bd. of Rock Dell Twp., 583 N.W.2d 293, 296 (Minn. App. 1998) ("The additional 60-day extension allowed under subdivision 3(f) serve[s] as evidence of the legislature's intent to require government to make decisions within 120 days of its initial consideration."), review denied (Minn. Oct. 20, 1998).  Respondents had 120 days from either July 10, 2003, or July 16, 2003, if appellants' application was not complete until respondents received the survey.  Respondents timely denied appellants' application on October 10, 2003. 

           b.  Extenuating circumstances

 

           Appellants argue that respondents can grant an extension based only on     extenuating circumstances.  However, the Minnesota Supreme Court has held that Minn. Stat. § 15.99, subd. 3(f) does not limit an extension for extenuating circumstances, "it merely requires that the reasons be stated."  Am. Tower, L.P. v. City of Grant, 636 N.W.2d 309, 314 (Minn. 2001).  The August 8 notice provided that respondents required an extension for the county attorney to review the application and advise the board.  Respondents did not need extenuating circumstances and their stated reason satisfies the statutory requirement.

           c.  Consistent oral and written reasons for the denial

           Appellants argue that respondents violated Minn. Stat. § 15.99, subd. 2(a) by failing to state in writing the reasons for the denial "at the time that it denie[d] the request."  In Demolition Landfill Servs., LLC v. City of Duluth, 609 N.W.2d 278, 279 (Minn. App. 2000), review denied (Minn. July 25, 2000), the city council voted and rejected a motion for a special-use permit for a landfill within the statutory time limit; however, the council's written denial occurred outside of the 120-day time limit.  This court concluded that under Minn. Stat. § 15.99, simultaneous written reasons for a denial are mandatory.  Demolition Landfill, 609 N.W.2d at 282.  This court later addressed the issue of "whether an absence of simultaneous written reasons for a timely denial can be cured before the deadline by a subsequent denial with simultaneous written findings."  Concept Props., LLP v. City of Minnetrista, 694 N.W.2d 804, 826-27 (Minn. App. 2005), review denied (Minn. July 19, 2005).  In Concept Properties, the city council timely denied an application, but failed to make written findings.  Id. at 827.  Two weeks later, the council met again, denied the application and set forth simultaneous written reasons for the denial within the time limit.  Id.  Unlike Demolition Landfill, the council denied the application a second time and issued simultaneous written findings before the response deadline.  Id.         

           This case is similar to Concept Properties.  On September 12, 2003, respondents denied appellants' application by finding Tract B unbuildable and in joint ownership, but did not make written findings.  On October 10, 2003, respondents met, denied appellants' request and provided simultaneous written reasons for the denial before the response deadline.  Thus, respondents complied with Minn. Stat. § 15.99, subd. 2(a).  Further, "[t]he requirement that contemporaneous findings be recorded prevents a city from offering after-the-fact justifications . . . unrelated to the actual reasons for the initial decision."  Demolition Landfill, 609 N.W.2d at 282 (quoting R.A. Putnam & Assoc. v. City of Mendota Heights, 510 N.W.2d 264, 267 (Minn. App. 1994)).  Here, the written reasons for the denial are the same reasons discussed at the September 12 meeting; thus, there is not the problem of unrelated after-the-fact justifications.    

           Appellants also argue that the September 12 motion does not speak to the application and that the written findings are inconsistent with the motion.  Appellants requested to sell Tract B independent from any other lot.  Under WCZO § 404 (3) (2003), an individual lot that is less than 20,000 square feet and contiguous to another lot under the same ownership may not be considered a separate parcel of land for the purposes of sale or development.  The motion, "this is an unbuildable lot, and it's held in joint ownership" addresses the application.  Under WCZO § 404 (3), Tract B, which is held in joint ownership with contiguous Tract A, is less than 20,000 square feet and may not be considered a separate parcel for sale.  Further, the motion and the written findings are consistent because the September 12 meeting minutes are incorporated into the written findings. 

           d.  Impermissible delay

           Appellants argue that respondents impermissibly delayed acting on their application.     Respondents initially sent written notice four days after receipt of appellants' application requesting a completed application.  "If an agency receives a written request that does not contain all required information, the 60-day limit starts over only if the agency sends written notice within 15 business days of receipt of the request telling the requester what information is missing."  Minn. Stat. § 15.99, subd. 3(a).  Respondents extended their time in which to respond an additional 60 days under Minn. Stat. § 15.99, subd. 3(f).  Appellants argue that respondents cannot delay under both provisions.  However, there is nothing prohibiting respondents from requesting a completed application and extending their time in which to respond an additional 60 days.  Additionally, respondents did not extend the time limit twice to avoid acting on appellants' applicationthe first delay was caused by appellants' failure to submit a complete application.   

           Appellants also argue that the August 8 notice did not comply with Minn. Stat. § 15.99, subd. 3(a).  However, the August 8 notice permitted an extension under Minn. Stat. § 15.99, subd. 3(f).  An extension is allowed if written notice is provided before the end of the initial 60-day period and "state[s] the reasons for the extension and its anticipated length, which may not exceed 60 days unless approved by the applicant."  Minn. Stat. § 15.99, subd. 3(f).  The August 8 written notice extended the time limit before the end of the initial 60-day period, because the county attorney had to review the application, and it anticipated a decision at the next hearing, but not beyond an additional 60 days.  Respondents did not impermissibly delay acting on appellants' application.  The district court correctly determined that respondents complied with Minn. Stat. § 15.99 and appropriately granted summary judgment in favor of respondents.

Respondents' decision was not unreasonable, arbitrary, or capricious

           a.  WCZO § 404 (2003)

 

            Appellants argue that respondents unreasonably interpreted WCZO § 404 (2003).  The interpretation of an ordinance is a question of law subject to de novo review.  Gadey v. City of Minneapolis, 517 N.W.2d 344, 347 (Minn. App. 1994), review denied (Minn. Aug. 24, 1994).  Three general rules of construction guide this court's interpretation: (1) terms in zoning ordinances are given their plain and ordinary meaning; (2) "zoning ordinances should be construed strictly against [a] city and in favor of [a] landowner"; and (3) zoning ordinances must be considered in light of their underlying policy goals.  Frank's Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608-09 (Minn. 1980).  General rules of statutory construction may also aid in interpretation.  Chanhassen Estates Residents Ass'n v. City of Chanhassen, 342 N.W.2d 335, 339 n.3 (Minn. 1984).

            Appellants contend that under WCZO § 404, Tract B can be sold separately.  WCZO § 404 states:

Lots of record in the office of the County Recorder prior to the effective date of this Ordinance may be allowed as residential building sites provided: 

 

(1) They have frontage on an existing public right-of-way or have frontage on an existing easement or other private roadway existing prior to January 1, 1977. 

 

(2) They have at least 20,000 square feet of area.  Lots smaller than 20,000 square feet may be used as dwelling sites if the owner can prove that adequate sanitary facilities can be provided.  Said sanitary facilities must be located on the same lot of record as the dwelling, or on adjacent land which is legally available to the owner . . . .

 

(3) In a group of two or more contiguous lots under the same ownership, if an individual lot has less than 20,000 square feet of area, no lot nor lots may be considered as a separate parcel of land for the purposes of sale or development unless each separated parcel and the reminder contains at least 20,000 square feet of lot area.

 

Appellants requested authorization to sell Tract B independent from any other lot; thus, appellants requested a variance from WCZO § 404(3).  Appellants argue, however, that they do not need a variance because they own Tract C, whichis contiguous to Tract B, has adequate sanitary facilities, and has a building entitlement.  But appellants only requested "to sell [Tract B] independently from any other lot."  Tract C and its relationship to Tract B are irrelevant.  Respondents correctly interpreted WCZO § 404 in light of appellants' application. 

b.  The decision was not unreasonable, arbitrary, and capricious

Appellants argue that the denial was unreasonable, arbitrary, and capricious.  This court has held:

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 Minn. Stat. § 394.27, subd. 7 (2004):

The 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.

 

Under WCZO § 502.3 (2003):

                        The 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 appellant fails to prove only one of the conditions, the Board of Adjustment cannot legally grant the Variance.   

 

            The record of respondents' proceedings shows that appellants failed to meet four of the five requirements.  Specifically, respondents determined (1) the variance would conflict with the county's comprehensive plan to "protect the natural environment and make wise use of the county's resources without degradation" because of unnecessary development and crowding on a parcel that has a steep grade and potential sewer problems, (2) Tract B would continue to have value as lake access for Tract A, (3) appellants presented no evidence of a unique hardship, and (4) the variance would alter the character of the neighborhood by developing a small property beyond the policy bounds adopted in the county's land-use plan.  Under WCZO § 502.3, if appellants failed to prove only one of the conditions respondents could not legally grant the variance.  Appellants failed to prove four of the five conditions; therefore, respondents' decision to deny the variance was reasonable. 

Respondents' denial of appellants' application does not constitute a "taking"

           Appellants argue that the denial violates the Minnesota Constitution which provides: "Private property should not be taken, destroyed or damaged for public use without just compensation."  Minn. Const. art. I, § 13.  "Whether a taking has occurred is a question of law which this court reviews de novo."  Thompson v. City of Red Wing, 455 N.W.2d 512, 516 (Minn. App. 1990), review denied (Minn. June 26, 1990). 

           "To establish an unconstitutional taking a landowner must demonstrate that he had been deprived, through governmental action or inaction, of all the reasonable uses of his land."  Holaway v. City of Pipestone, 269 N.W.2d 28, 30 (Minn. 1978) (quotation omitted).  Here, appellants have not demonstrated that the denial of their zoning application has deprived them of all reasonable uses of their land.  Respondents determined that Tract B will continue to provide lake access for Tract A.  Appellants argue, however, that they will not experience a reasonable return on their investment.  Appellants' appraisal indicates the value of Tract B if sold independently, but appellants presented no evidence regarding the value paid for Tract B.  Further, "[m]ere diminution in market value is not such a demonstration, when a reasonable use of the land is permitted under the zoning ordinance."  Id.  Respondents' denial of appellants' application was not an unconstitutional taking of appellants' property. 

Appellants were not denied equal protection of the law

Appellants argue that they were denied equal protection of the law because   appellants discovered eight transactions which should have raised issues under WCZO § 404, but their application was the only one scrutinized and denied.

A zoning ordinance must operate uniformly on those similarly situated . . . . [T]he equal protection clauses of the Minnesota Constitution and of the Fourteenth Amendment of the United States Constitution require that one applicant not be preferred over another for reasons unexpressed or unrelated to the health, welfare, or safety of the community or any other particular and permissible standards or conditions imposed by the relevant zoning ordinances.

 

Nw. College v. City of Arden Hills, 281 N.W.2d 865, 869 (Minn. 1979) (quotation omitted).  "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). 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 N.W.2d 21 (Minn. App. 1997), aff'd without opinion, 581 N.W.2d 815 (Minn. 1998). 

Appellants suggest that eight "similarly-situated" properties were treated more favorably; however, all of the situations occurred years before appellants' application.  See Stotts v. Wright County, 478 N.W.2d 802, 806 (Minn. App. 1991) ("Stotts cannot meet the similarly situated requirement for an equal protection claim because his variance request and his neighbor's variance request are separated in time."), review denied (Minn. Feb. 11, 1992); Johnson, 404 N.W.2d at 301 ("The Johnsons applied to the County for a variance in August 1986.  Six of the applications they compare themselves to were decided in 1983, three were decided in 1984, and one was decided in May 1985. The Johnsons are therefore not ‘similarly situated' to the prior applicants.").  Appellants cannot meet the similarly situated requirement for an equal-protection claim because their 2003 application is separated in time from the other situations dating from 1975 through 2000.  Respondents' denial of appellants' application did not deny appellants equal protection of the law.  The district court properly granted summary judgment in favor of respondents.     

This court cannot properly consider appellants' subdivision issue

           Appellants argue that respondents accused them of creating an illegal subdivision by selling Tract A without Tract B.  Appellants did not raise this issue on summary judgment.  Because this court generally considers "only those issues that the record shows were presented and considered by the trial court in deciding the matter before it," we decline to address this issue for the first time on appeal.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). 

           Affirmed.