Berndt v. County of Crow Wing

Not Reported in N.W.2d
Page 1

Not Reported in N.W.2d, 2006 WL 1073196 (Minn.App.)

(Cite as: Not Reported in N.W.2d)

7.5.1.1

Berndt v. County of Crow Wing

Minn.App.,2006.

Only the Westlaw citation is currently available.

NOTICE: THIS OPINION IS DESIGNATED AS UNPUBLISHED AND MAY NOT BE CITED EXCEPT AS PROVIDED BY MINN. ST. SEC. 480A.08(3).

Court of Appeals of Minnesota.

In re Appeal of David BERNDT, Richard Berndt, Lois Berndt, Dale Berndt, and Carol Berndt from the September 19, 2002 Decision of the Board of Adjustment of the County of Crow Wing, State of Minnesota, Affirming that Decision of the Planning and Zoning Administrator to issue Permits 228279 and 228280 to Michael D. Spotts and Allyson Spotts, David Berndt, et al., Respondents,

v.

COUNTY OF CROW WING, State of Minnesota, Appellant (A05-1381), Respondents (A05-1409),

Michael D. Spotts, et al., Respondents (A05-1381), Appellants (A05-1409).

Nos. A05-1381, A05-1409.

April 25, 2006.

Background: Residents sought review of board of adjustment decision affirming the issuance of permit to landowners to build a cabin with a deck and install a new septic system. The District Court, Crow Wing County, reversed the board’s decision. Landowners and board appealed.

Holdings: The Court of Appeals, Kalitowski, J., held that:

(1) board’s decision to uphold the permit to construct dwelling and install a septic system was reasonable;

(2) the District Court was without jurisdiction to consider appeal of board approval of wetland fill permit; and

(3) board decision to uphold wetland fill permit was reasonable.

Affirmed in part, reversed in part, and remanded.

West Headnotes

[1] Zoning and Planning 414 385

414 Zoning and Planning

414VIII Permits, Certificates and Approvals

414VIII(A) In General

414k384 Nature of Particular Structures or Uses

414k385 k. Architectural and Structural Designs. Most Cited Cases

Board of adjustment reasonably determined that permit issued to landowners to construct a dwelling and deck and to install a septic system near lake shoreline complied with zoning ordinance requirements, and therefore, the board’s decision to uphold the permit was reasonable; landowners’ application included a sketch of the proposed construction showing setbacks to be within zoning ordinance requirements, and no evidence was presented to show that setback requirements were violated.

[2] Zoning and Planning 414 569

414 Zoning and Planning

414X Judicial Review or Relief

414X(A) In General

414k569 k. Jurisdiction. Most Cited Cases

District Court was without jurisdiction to consider appeal of board of adjustment decision approving issuance of permit allowing landowners to fill four hundred square feet of wetland, even though county zoning procedures allowed for board decisions to be appealed to district court; state wetland conservation act directed appeals of county wetland fill determinations to the board of water and soil resources and did not authorize counties to create a separate review process, and circumvention of the act’s appeal procedure could result in less restrictive appeal forum. Minn.Stat. §§ 103B.3355, 103G.222 subd. 1(a), 103G.2241, 103G.2242, subds. 4, 9(a) (2002); Minn. R. 8420.0245 (2001).

[3] Environmental Law 149E 136

149E Environmental Law

149EIV Water, Wetlands, and Waterfront Conservation

149Ek129 Permissible Uses and Activities; Permits and Licenses; Management

149Ek136 k. Discharge or Deposit of Dredged or Fill Material. Most Cited Cases

Zoning and Planning 414 385

414 Zoning and Planning

414VIII Permits, Certificates and Approvals

414VIII(A) In General

414k384 Nature of Particular Structures or Uses

414k385 k. Architectural and Structural Designs. Most Cited Cases

Board of adjustment decision to uphold permit allowing landowners to fill four hundred square feet of wetland was reasonable; both state wetland conservation act and county zoning ordinance allowed up to four hundred square feet of wetland fill, and county ordinance was interpreted in conjunction with the state act in exempting previous fill activity on the landowners’ property. Minn.Stat. §§ 103G.222, subd. 1(a), 103G.2241; Minn. R. 8420.0122, subp. 9 (2001).

Crow Wing County District Court, File No. C5-02-2688.

John H. Erickson, Erickson, Pearson & Aanes, Brainerd, MN, for respondents.

Stephen G. Andersen, Isaac Kaufman, Ratwik, Roszak & Maloney, P.A ., Minneapolis, MN, for appellant Crow Wing County.

Gerald W. Von Korff, John C. Kolb, Rinke-Noonan, St. Cloud, MN, for appellants Michael D. Spotts, et al.

Considered and decided by LANSING, Presiding Judge, KALITOWSKI, Judge, and HALBROOKS, Judge.

UNPUBLISHED OPINION

KALITOWSKI, Judge.

*1 In this dispute involving the development of lakefront property, appellants Crow Wing County and Michael and Allyson Spotts challenge a district court order that reversed the county board of adjustment’s decision to affirm the issuance of a permit to build a cabin with a deck and install a new septic system. By notice of review, respondents argue that the district court erred in determining that it did not have jurisdiction to consider the wetland fill permit and that the permit violated the county’s zoning ordinance. We reverse the district court’s reversal of the issuance of the permit for the dwelling and septic system and affirm the court’s refusal to consider the wetland fill permit.

DECISION

I.

Appellants argue that the district court erred in reversing the issuance of a permit for the dwelling and septic system construction because (1) construction was completed while the district court matters were pending, and therefore, the district court’s decision is moot; and (2) the county board of adjustment’s (BOA) decision was reasonable and supported by the record. We agree.

When an event occurs that makes a decision on the merits unnecessary or an award of effective relief impossible, courts may dismiss the appeal as moot. In re Application of Minnegasco, 565 N.W.2d 706, 710 (Minn.1997); Apple Valley Square v. City of Apple Valley, 472 N.W.2d 681, 683 (Minn.App.1991). For example, in Moore v. McDonald, 165 Minn. 484, 485, 205 N.W. 894, 895 (1925), the Minnesota Supreme Court addressed an appeal from the issuance of a construction permit and determined that the appeal was moot because construction was complete.

Here, appellants Michael and Allyson Spotts (the Spottses) proceeded to build a cabin and install a septic system on their property soon after appellant Crow Wing County (the county) issued them a construction permit in July 2002. Respondents appealed the issuance of the permit to the BOA. After the BOA upheld the permit, respondents appealed the BOA decision to the district court. The Spottses subsequently completed the construction, and more than two years later, the district court reversed the BOA’s decision. But respondents did not seek a temporary injunction or other relief to stop construction while the district court matter was pending. Thus, under the authority presented to us, we conclude that the district court’s decision regarding the dwelling and septic system permit may be moot.

But importantly, even if the issue is not moot, based on the merits of appellants’ argument, we conclude that the BOA’s decision to uphold appellant’s permit was reasonable. This court reviews actions by a zoning authority independent of the findings and conclusions of the district court. Town of Grant v. Washington County, 319 N.W.2d 713, 717 (Minn.1982). We must determine whether, on the evidence before us, the zoning authority made a reasonable decision. Id.; see also Mohler v. City of St. Louis Park, 643 N.W.2d 623, 630 (Minn.App.2002), review denied (Minn. July 16, 2002).

*2 In cases where the interpretation of an ordinance is at issue, we look to the ordinance itself to determine whether a governmental entity’s decision was unreasonable or arbitrary and capricious. White Bear Docking & Storage, Inc. v. City of White Bear Lake, 324 N.W.2d 174, 176 (Minn.1982). “ [W]here the question is whether an ordinance is applicable to certain facts, the determination of those facts is for the governmental authority, but the manner of applying the ordinance to the facts is for the court.” Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn.1980). But when an agency’s construction of its own regulation is at issue, this court gives considerable deference to that agency’s interpretation. St. Otto’s Home v. Minn. Dep’t of Human Servs., 437 N.W.2d 35, 40 (Minn.1989).

[1] Here, the county has adopted zoning ordinance provisions that regulate septic systems and incorporate the standards articulated in Chapter 7080 of the Minnesota Rules. See Crow Wing County, Minn ., Zoning Ordinance § 31.0 (2002). Under those standards, permit files must contain site evaluation reports that include a map illustrating the distance between proposed septic systems and the ordinary high water mark of public waters. Minn. R. 7080.0110, subp. 5a.C(1), 7080.0310, subp 4.A (2001). In addition, preliminary evaluations shall include the ordinary high water level (OHWL) of public waters and all required setbacks from the system. Minn. R. 7080.0110, subp. 2a.D, G (2001).

The county has also adopted zoning ordinance provisions that regulate building setbacks. See Crow Wing County, Minn., Zoning Ordinance § 11.10 (2002). The provisions require that structures and on-site sewage systems be set back certain distances from the OHWL. Id.

Here, the BOA upheld the Spottses’ permit to construct a dwelling and deck and to install a septic system. Respondents argue that the BOA’s decision was unreasonable because the Spottses’ permit application did not properly identify the dwelling’s and the septic system’s setbacks from the OHWL. We disagree and conclude that on this record the BOA reasonably determined that the permit application complied with the zoning ordinance.

First, the Spottses’ permit application included a sketch of the proposed construction that indicates that the septic system would be set back at least 125 feet from the lake shoreline, and the cabin would be set back more than 75 feet from the shoreline. The county ordinance only requires that unsewered structures be set back 75 feet from the OHWL and that sewered system structures and sewage treatment structures be set back 50 feet from the OHWL. Id. The Spottses’ sketch did not specifically denote the OHWL, but the first page of the application indicated that the setbacks relate to the ordinary high water and the road right-of-way. Moreover, there is no evidence that the county has ever required that permit applications contain more specific information than what was provided by the Spotts.

*3 Second, and most importantly, no evidence was presented to the BOA or to this court that the dwelling and septic system, as constructed, violate the setback requirements. Rather, the evidence indicates that the County Planning and Zoning Office Coordinator and Enforcement Officer (enforcement officer) submitted memoranda and testimony to the BOA that the setbacks are legal. In addition, the enforcement officer informed the BOA that a certified inspector certified the septic system and that the Soil and Water Conservation District (SWCD) approved the permits.

Based on this record, we conclude that the BOA reasonably determined that the permit met the zoning ordinance requirements; therefore, the BOA’s decision to uphold the dwelling and septic system permit was reasonable. Thus, we reverse the district court’s decision reversing the BOA’s issuance of the dwelling and septic system permit and remand for entry of judgment affirming the BOA’s issuance of the permit.

II.

Respondents argue that the district court erred in determining that it did not have jurisdiction to consider the wetland fill permit appeal and that the permit violated the county’s zoning ordinance.

Whether a district court has subject matter jurisdiction is a question of law, which this court reviews de novo. Carlson v. Chermak, 639 N.W.2d 886, 889 (Minn.App.2002). District courts only have jurisdiction that is conferred to them by the Minnesota Constitution or by law. Minn. Const. art. VI, § 3; Minn.Stat. § 484.01, subd. 1 (2004); see also Carlson, 639 N.W.2d at 889.

[2] Here, the county zoning and planning office issued the Spottses a permit to fill 400 square feet of wetland. Both the Wetland Conservation Act (WCA) and the county’s zoning ordinance regulate the fill of wetlands, but they provide different appeal procedures. Compare Minn.Stat. §§ 103G.222, subd. 1(a), 103G.2241, 103G.2242, subds. 4, 9(a) (2002), with Crow Wing County, Minn., Zoning Ordinance §§ 5.0, 9.10, 17.0-17.7 (2002). Under the county ordinance, the county’s zoning and planning office issues permits for wetland fill activities. Crow Wing County, Minn., Zoning Ordinance § 17.2. Aggrieved parties may then appeal the permit decisions to the BOA and then to the district court. Crow Wing County, Minn., Zoning Ordinance §§ 5.0, 9.10. In contrast, the WCA directs parties to appeal county wetland fill determinations to the Board of Water and Soil Resources (BWSR). Minn.Stat. § 103G.2242, subd. 9(a).

Here, respondents appealed the issuance of the Spottses’ permit to the BOA and then the district court. But the district court refused to decide the appeal because it determined that the WCA controls, and that it consequently did not have jurisdiction. We agree.

Although the WCA and its administrative rules authorize local government units to enact regulations that are more protective than the WCA, the WCA does not state that it also authorizes counties to create a separate review process for wetland fill determinations. See Minn.Stat. § 103B.3355 (2002); Minn. R. 8420.0245 (2001). And allowing parties to circumvent the WCA’s appeal procedure could impermissibly result in an appeal forum that is less restrictive than the BWSR. Thus, we conclude that the district court properly determined it did not have jurisdiction over the wetland fill permit appeal.

*4 [3] In addition, even if the district court erred in not reviewing the permit, our standard of review requires that we review the BOA’s actions independent of the findings and conclusions of the district court. See Town of Grant, 319 N.W.2d at 717. And we will not reverse a BOA’s decision unless it was unreasonable, arbitrary, or capricious. See White Bear Docking & Storage, Inc., 324 N.W.2d at 176.

On this record, we conclude that the BOA’s decision to uphold the wetland fill permit was reasonable. First, the WCA allows up to 400 square feet of fill in wetlands. Minn.Stat. §§ 103G.222, subd. 1(a), 103G.2241; Minn. R. 8420.0122, subp. 9 (2001). Here, a previous owner engaged in filling activity on the Spottses’ property in 1988. But under the WCA, filling activities that occur before January 1, 1992, are exempt from the 400 square feet restriction. Minn.Stat. § 103G.2241, subd. 9(c); Minn. R. 8420.0122, subp. 9.C.

In addition, the county’s zoning ordinance also allows up to 400 square feet of fill, one time cumulative, in certain wetland areas. Crow Wing County, Minn., Zoning Ordinance § 17.2.C.3 (2002). The ordinance further requires that the SWCD inspect the property before the county approves the fill. Id. The ordinance does not specifically exempt fill activity that occurred before January 1, 1992, but both county officials and the SWCD interpreted the county ordinance in conjunction with the WCA, rather than interpreting the ordinance as more restrictive than the WCA. Thus, the SWCD approved the fill, and county officials informed the BOA that the WCA rules exempt wetland fill before January 1, 1992. Based on this information, the BOA upheld the permit.

Because we give considerable deference to an agency’s interpretation of its own regulation, we cannot conclude that the BOA’s decision to approve the wetland fill permit was not reasonable. See St. Otto’s Home, 437 N.W.2d at 40.

Affirmed in part, reversed in part, and remanded.

Minn.App.,2006.

Berndt v. County of Crow Wing

Not Reported in N.W.2d, 2006 WL 1073196 (Minn.App.)

END OF DOCUMENT

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