Agenda - Planning Commission - 08/05/2010

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Zoning Bulletin June 10, 20101 Volume 4I No. 11 Pre-emption--Applicant challenges state agency's refusal to certify variance, arguing variance not needed anyway under local ordinance State agency argues state rule requiring variance trumps local ordinance Citation: In re Haslund, 2010 WL 1707335 (Minn. 2010) MINNBSOTA (04/29/10)—This case addressed whether a state agency may enforce a state rule, prohibiting a proposed development, when the agency approved a city ordinance, which permits the same proposed development. The Background/Facts: David Haslund owned an undeveloped lot (the "Lot") in the city. The Lot was .S4 acres and was unplatted. The Lot, along with an adjacent lot, had been conveyed to Haslund in 2000 by his mother. Those lots had been owned by the Haslund family since 1943. Haslund had sold the adjacent lot and sought to develop the Lot. Because the Lot was "substandard" —less than one acre —he needed a variance from the city, as required by the city's Bluffland/Shoreland Management Ordinance § 602.02 (the "BSM Ordinance"). The city granted the variance. However, Minnesota's Department of Natural Resources ("DNR") denied certification of the variance, determining that development of the Lot would violate standards in a DNR rule (the "State Rule"). The DNR had, as required by the state's Lower St. Croix Act, ad- opted the State Rule, among other rules, to protect the Lower St. Croix River. The State Rule applied to "substandard lots" —those less than one acre —such as Haslund's. (See Minn. R. 6105.0380, subp. 2.) Un- der the State Rule, substandard lots that had been owned in combi- nation with an adjacent lot after 1974 were "uribuildable." In such a case, the lot was "buildable only with a variance or when combined with adjacent lots to create a parcel that [was] not substandard." The Lower St. Croix Act also contemplated enforcement of state rules through local ordinances. The Act required the DNR to deter- mine whether a Local ordinance was in "substantial compliance" with the state's standards. If the DNR determined that an ordinance was not in "substantial compliance," it was required to notify the municipality of changes needed to bring the ordinance into compliance. (See Minn. State § 103F.221, subd. 1(b).) Here, the city's BSM Ordinance had been approved by the DNR in accordance with statutory requirements. O 2010 Thomson Reuters 7 167