Alan and Sheila Bakken, husband and wife, Appellants, vs. County of Cass of the State of Minnesota, Respondent.

Alan and Sheila Bakken, husband and wife, Appellants, vs. County of Cass of the State of Minnesota, Respondent. A06-1216, Court of Appeals Unpublished, June 5, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1216

 

Alan and Sheila Bakken,

husband and wife,

Appellants,

 

vs.

 

County of Cass of

the State of Minnesota,

Respondent.

 

Filed June 5, 2007

Affirmed
Klaphake, Judge

 

Cass County District Court

File No. C2-04-727

 

Lonny D. Thomas, Jonathan T. Trexler, 34354 County Road 3, P.O. Box 430, Crosslake, MN  56422 (for appellants)

 

Isaac Kaufman, Stephen G. Andersen, Ratwik, Roszak & Maloney, P.A., 300 U.S. Trust Building, 730 Second Avenue South, Minneapolis, MN  55402 (for respondent)

 

            Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

             Appellants Alan and Sheila Bakken challenge the district court's grant of summary judgment to respondent Cass County, affirming a decision by the county's Board of Adjustment (BOA) to grant a variance to appellants' neighbors, Scott and Carol Carron.  The variance allowed the Carrons to enclose a porch that is located less than ten feet from appellants' property, within the minimum side-yard setback.  Because appellants have failed to show that the BOA's decision to grant the variance was unreasonable, arbitrary or capricious, or contrary to law, we affirm the district court's grant of summary judgment to the county.

FACTS

            In 1974, the previous owner of the Carrons' property, Emil Frank, obtained a variance to construct a "deck" on his "undersized lot."  Frank's variance application indicated that the proposed deck was to be "all open" and "close to the lot line," and that the neighbors had "no objections."  The "deck" or porch consisted of a concrete slab that was covered by a roof.

            The Carrons purchased the property in 2001.  In 2004, they applied for a variance, indicating that they wished to enclose the porch for additional living space and that the side-yard setback would be seven feet.

            Following a public hearing on May 10, 2004, the BOA placed two conditions on its grant of the variance:

1.         The addition shall not increase the structure footprint & be no closer to a property boundary line determined by survey or by other means.

2.         The roof over the addition must [be no] higher to the peak than the existing roof.

 

The BOA also made five findings:

1.         The configurations & the location of the existing residence, both, which predate land use regulations, restrict placement of the addition at the required setback.

2.         The addition will not increase the footprint of the existing residence.

3.         The addition will not increase the amount of impervious surface on the parcel.

4.         The addition will not increase the existing side-yard setback.

5.         The application is not solely economically based.

 

The county's environmental services director, who visited the site after completion of the project, stated by affidavit that "[t]he as-built structure is consistent with what the [BOA] and I envisioned when we conducted our May 3, 2004 site visit [prior to the public hearing]."  The director further stated that although "[t]he footprint of the porch has been expanded by a matter of a few inches, if at all," this discrepancy was "de minimus."  While the parties disagree as to the exact figures, it is undisputed that the Carrons' addition was constructed at a distance of between 5.9 to 7 feet from appellants' property line.

D E C I S I O N

            A county or municipal board of adjustment (BOA) 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).  "In determining reasonableness, we are guided by the standards set out in the relevant county ordinance, but [the BOA's] authority to grant variances under the ordinance may not exceed the power granted by statute."  Id.  "When proceedings before [the BOA] are fair and complete, appellate review is based on the record of the [BOA's] proceedings, not the district court's findings or conclusions."  Id.

            The BOA may grant a variance only if it is in harmony with the general purposes and intent of local ordinances and if strict enforcement of those ordinances will cause "practical difficulties" or "particular hardship."  Minn. Stat. § 394.27, subd. 7 (2006).  "Hardship" is defined to mean that "(1) the property in question cannot be put to a reasonable use" absent the variance; (2) "the plight of the landowner is due to circumstances unique to the property [and] not created by the landowner"; and (3) "the variance, if granted, will not alter the essential character of the locality."  Id.  Economic considerations alone do not constitute hardship if there is a reasonable use for the property absent a variance.  Id.  The Cass County Land Use Ordinance outlines similar factors to consider when determining whether a variance should be granted.  See Cass County, Minn., Land Use Ordinance §§ 805.1, .2, .3 (2005).

            Appellants argue that the county has failed to establish that the Carrons would suffer hardship if the variance were denied.  They insist that the record fails to show that the Carrons would "face any imminent loss or unusual practical difficulty without the [a]ddition" and that the Carrons "rely on no other basis than that they want to implement the [a]ddition and thereby expand their already inflated structure."

            However, the hardship requirement does not mean that an applicant must show that property cannot be put to any reasonable use without a variance.  See Mohler v. City of St. Louis Park, 643 N.W.2d 623, 631 (Minn. App. 2002) (rejecting position that applicant must show that property cannot be put to any reasonable use without variance); Nolan v. City of Eden Prairie, 610 N.W.2d 697, 701 (Minn. App. 2000) (same).  Rather, applicants need only show that they would like to use their property in a reasonable manner that is prohibited by the ordinance.  Rowell v. Bd. of Adjustment of City of Moorhead, 446 N.W.2d 917, 922 (Minn. App. 1989), review denied (Minn. Dec. 15, 1989).

            Here, the stated purpose of the Carrons' proposed addition was to create additional living space by enclosing a preexisting porch.  While appellants describe the addition as "large," "opaque," "invasive," "insidious," and "inflated," the color photographs of the site fail to support this characterization.  To the contrary, the evidence establishes, and the BOA's findings demonstrate, that the addition is entirely reasonable and wholly consistent with the character of the surrounding area and properties.

            Appellants next argue that the grant of a variance in this case was improper because the Carrons' hardship was established by their predecessor in title, citing Dedering v. Johnson, 307 Minn. 313, 320, 239 N.W.2d 913, 918 (1976).  As the county notes, however, Dedering involved the development of substandard contiguous lots, and held that a variance of development of a substandard lot may be denied when a predecessor in title could have removed the nonconformity by combining that lot with other contiguous lots.  Id.  In other words, a variance may be denied when a predecessor in title has behaved illegally and the applicant is aware of those illegal acts when he or she purchased the property.  See VanLandschoot v. City of Mendota Heights, 336 N.W.2d 503, 509 (Minn. 1983).  Here, no evidence suggests that Emil Frank obtained his variance for some illegal purpose.  Thus, even if, as appellants suggest, the Carrons were aware that the variance granted to their predecessor was conditioned on the porch remaining open, that knowledge does not prevent the Carrons from seeking their own variance to enclose the porch.

            Appellants further argue that the BOA failed to recognize that the Carrons admitted in their variance application that their property could be put to reasonable use even without the variance and that their plight was due to circumstances created by the previous landowner.  As explained by the county's environmental services director, however, the form used by the county asks variance applicants a series of questions to provide guidance to the BOA in assessing the reasonableness of the application.  The director further explained that because laypersons generally fill out this form with limited understanding of land use regulations and policies, responses to these questions do not control the BOA's decisions, and no applicant has ever been deemed to have waived the right to full consideration of a variance application based on responses made on the form.

            Appellants lastly argue that the variance fails to comply with other county ordinances because the BOA made no findings with respect to shoreline buffers and individual sewage treatment system.  The county responds that the then-effective ordinance applied to new construction, not to improvements and modifications such as the Carrons' request to enclose their existing porch.  Because the Carrons' project had no impact on the shoreline that would trigger the need for a buffer and did not involve a new septic system, this ordinance was not implicated.

            We therefore reject appellants' arguments and affirm the district court's grant of summary judgment to the county.[1]

            Affirmed.

 

 

 

 

[1] The county has raised a number of other arguments for the first time on appeal, including whether this appeal is moot, whether the county is immune from liability, and whether this matter is more appropriate for mandamus.  Given our decision to affirm the district court's grant of summary judgment, we decline to address these additional arguments.