The
County of Hennepin, petitioner, Appellant, vs. H. William
Lurton, et al., Respondents, James J. Johnson, et al., Respondents.
C0-00-276
COURT OF APPEALS OF MINNESOTA
2000 Minn. App. LEXIS 1211
December 5, 2000, Filed
NOTICE:
[*1]
THIS OPINION WILL BE UNPUBLISHED AND MAY NOT BE CITED EXCEPT AS PROVIDED BY
MINN. STAT.
§ 480A.08, SUBD. 3 AS AMENDED.
PRIOR HISTORY: Hennepin County District Court. File No. CD2485.
DISPOSITION: Reversed and remanded.
COUNSEL: Amy Klobuchar, Hennepin County Attorney, Lisa A. Berg, Assistant County
Attorney, C-2000 Government Center, Minneapolis, MN (for appellant).
Jerome V. Blatz, Bloomington, MN (for respondent Johnson).
JUDGES: Considered and decided by Crippen, Presiding Judge, Halbrooks, Judge, and
Holtan, Judge. *
* Retired judge of the district court, serving as judge of the Minnesota Court
of Appeals by appointment pursuant to Minn. Const. art. VI,
§ 10.
OPINIONBY: CRIPPEN
OPINION:
UNPUBLISHED OPINION
CRIPPEN, Judge
Taking Orono property in a
condemnation proceeding, appellant Hennepin County contends that the property has no prospective value
as six separate lots because an Orono
zoning ordinance requires, among other things, that a
residential lot be at least five
acres in size. As appellant contends, there is no evidence in the record to support
the trial court determination that the property was
exempt from the five-acre
ordinance provision. Accordingly,
[*2] we reverse and remand for a redetermination of whether the highest use of the
parcel is as two lots conforming to the Orono
ordinance.
FACTS
Respondents own
Parcel 29, which is located in the City of Orono. The
parcel consists of a tract that was
platted in 1972 as
"Mark One," which broke the
parcel into six lots--in two
blocks--and an outlot. In 1998, Hennepin County took a portion of
Parcel 29 in a
condemnation proceeding.
Respondents James and Sharon Johnson claim that the highest and best use of the
property is as six
developable
residential lots. n1 The county contends that this use conflicts with the requirements of
the city
ordinance that
residential lots be at least five
acres in size. Orono, Minn., City Code
§ 10.27, subd. 5B (1984).
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n1 The taking affected only the three lots in
Block 1 of the Mark One
plat.
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Respondents argue that the property is
exempt from the size requirement of the relevant
ordinance pursuant to a city
ordinance providing that a
"lot of record" n2 in the relevant
[*3] area not meeting the size requirements of the
zoning ordinance may be the site of a single-family dwelling if it is (a) at least one
acre in size, with an average width of at least 100
feet, (b) either served by a public
sanitary
sewer or meets all public
septic system requirements, and (c) meets the requirements of this or other
applicable City Code provisions. Orono, Minn.,
Ordinance 172
§ 31.203 (Jan. 1, 1975).
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n2 A
"lot of record" is defined as
"any lot for which a deed or registered land survey has been recorded in the
office of the Register of Deeds or the Register of Titles for Hennepin County,
Minnesota, prior to January 1, 1975, and after approval by the Council if
required." Orono, Minn., City Code
§ 10.03, subd. 6 (1984).
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Agreeing with respondents, the trial court determined that respondents'
property was
developable into six
residential lots. The court observed that
"there is no dispute" that the six
platted lots
"do in fact meet" the requirements of section 31.203 of
Ordinance
172.
DECISION
[*4]
The application of an
ordinance to undisputed facts is a question of law for the court to decide.
Graham v. Itasca County Planning Comm'n., 601 N.W.2d 461, 467 (Minn. App. 1999). This court reviews questions of law de novo.
Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn. 1989).
The county argues that there is no evidence that the lots meet the second and
third requirements of section 31.203 regarding
sewer improvements and other
ordinance requirements. With respect to the
sewer system requirement, the county contends that none of the six lots are served
by a public
sanitary
sewer and that there is no evidence the lots meet all
septic system requirements. The county also contends that development of the lots
would violate applicable setback requirements.
The record contains nothing to suggest that the parties agree that the second
and third requirements have been
met in this case, and there is no evidence in the record permitting a judicial
determination as to whether these requirements of section 31.203 have been met.
Respondents state to this court that
"all the conditions of Section 31.203 have been met," but they cite neither law
[*5] nor fact to explain this conclusion. Because there is nothing in the record to
indicate whether the six lots in this case are exempted from the size
requirement of the relevant
zoning ordinance, the matter must be remanded for a determination of the issue by the trial
court. We express no opinion on the merits of the issue to be decided on remand.
Appellant asserts an alternative basis for its proposition that the lots are
not
developable into six lots. It is premature to explore this alternative until the district
court has determined whether the lots meet the three requirements of section
31.203.
Respondents argue that even if the lots do not meet the three requirements of
section 31.203, respondents are entitled to relief from the requirements of the
current zoning
ordinances based on Minn. Stat.
§ 462.358, subd. 3c (1998). This statute provides that a developer will not be
required to submit a
new application for subdivision approval if
"substantial physical activity and investment has occurred in
reasonable reliance on the approved application" and substantial financial damage will be suffered as a consequence of a
requirement to submit a
new application.
Henning v. Village of Prior Lake, 435 N.W.2d 627, 631 (Minn. App. 1989),
[*6]
review denied (Minn. Apr. 24, 1989). Because there is no evidence that substantial physical
activity and investment has occurred in
reasonable reliance on the original
plat, the record does not permit the conclusion that this statute governs the case;
the only evidence of activity on the property shows the building of
respondents' primary residence, the installation of telephone hookups, and the
grading of the driveway from time to time.
Respondents also argue that even if the property does not meet the requirements
of section 31.203, they have a
vested right to develop the property.
See
Interstate Power Co. v. Nobles Cty. Bd., 617 N.W.2d 566 (Minn. 2000) (discussing doctrines of vested rights and estoppel, to protect certain prior
investments, citing,
inter alia,
Ridgewood Dev. Co. v. State, 294 N.W.2d 288, 294 (Minn. 1980)). But to acquire such a
vested right, there must be more than mere possession of a building permit, the incurring of
some expense, the assumption of obligations preliminary to construction, the
removal of trees, and
grading of the land.
Id. The record does not show sufficient progression to warrant application of the
[*7] vested-rights theory in this case.
Reversed and remanded.
