Agenda - Planning Commission - 05/07/2009

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i I I I I I I n...- "; ,---,/ I II I (/~.\ F ,-,. (U Zoning Bulletin Apri/10, 20091 Volume 31 No.7 MINNESOTA (02/26/09)-In 2005, Big Lake Properties ("BLP") ac- quired an existing lakeshore resort on Big Lake in the county. The resort was located in an area that was zoned as "shoreland mixed use." That zoning designation allowed planned unit developments as a conditional use. In 2006, BLP applied to the county planning commission (the "Commis- sion") for a conditional use permit for "a commercial planned unit develop- ment consisting of a total of 24 units." BLP proposed to increase the num- ber of cabins units at the resort from 13 to 24. It also proposed to convert the. resort into a "commercial common interest community," in that it would sell existing cabm units to private ind~viduals with the purpose. of continued rental in a resort setting. The. Commission conducted a public hearing on BLP's proposal. Those opposing the proposal raised concerns that included: an old remediated en- vircmmental problem on the site; arid the density of the proposal, which in- \ creased the number of cabins from 13 to 24. In addition, one neighboring property owner questioned whether the owners of the resort "are actually oIi Big Lake to run a .resort or nirn a quick profit on the sale of lakeshore lots." Following the hearing, the Commission approved the conditional use permit. Big Lake Association (the "Association") was an organization with a principal purpose of preserving the natural condition of Big Lake. By writ of certiorari, the Association appealed the Coinmission's decision to the court of appeals. Among other things, the Association argued that the Commis- ' sion should have treated the BLP proposaJas a residential, rather than com- mercial,planned unit development ("PUD").Jhe Association contended that since "ELP's proposal did not meet the density requirements for a residential PUD, the Commission's approval of the conditional use permit was arbitrary and capricious.. . The court of appeals affirmed the Commission's decision to grant the con- ditional use permit to BLP. Among others, the court concluded that the As- . . sQciation had waived its argument that the Commission acted arbitrarily in allowing BLP's proposal to proceed as a commerciafpUD. The Association appealed. DECISION: Affirmed. The Supreme Court of Minnesota held that the issue regarding the ap- propriate classification of the proposal was waived because it was not fairly raised for consideration before the Commission. The court explained that it could not allow the parties to litigate an is- sue on certiorari review that was not raised before the local zoning authority because to do so would "encroach on the county's broad authority in mak- ing quasi-judicial decisions." It noted that the question of whether a zoning or land use planriing issue was property raised was not always easily deter- mined. Moreover, in making that determination, the court would not apply an "inflexible formalistic test." Rather, it would review the record to see if @ 2009 Thomson Reuters 5 47