Agenda - Planning Commission - 08/05/2010

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June 10, 2010 I Volume 41 No. 11 Zoning Bulletin Similar to the State Rule, the city's BSM Ordinance prohibited de- velopment of substandard adjacent lots owned jointly after 1974. However, the BSM Ordinance applied only to "platted" lots, while the State Rule applied to all lots. Thus, Haslund did not need a variance under the BSM Ordinance since Haslund's Lot and the adjacent lot were unplatted. Haslund sought review by.an administrative law judge ("ALJ") of the DNR's denied certification of variance. He argued "that the plain language of the BSM [O]rdinance did not require a variance to develop [his] Lot...." The DNR, however, maintained that the Lot "still require[d] a vari- ance based not on the BSM [O]rdinance but the [S]tate [R]ule." The DNR argued "that the fact that the BSM [O]rdinance applie[d] only to platted lots and the [S]tate [R]ule incorporate[d] no such limitation create[d] a conflict." The DNR argued that, given the conflict, the State Rule was superior and governed. The ALJ concluded that the DNR properly enforced the State Rule. The ALJ recommended that the DNR Commissioner affirm the DNR's denial of certification of the variance granted to Haslund by the city. The DNR denied certification of the variance. Haslund appealed. The court of appeals affirmed the DNB's deci- sion. The court held that the State Rule preempted the BSM Ordinance to the extent the two conflicted. Haslund appealed. The Court's Decision: Judgment of the court of appeals reversed. The Supreme Court of Minnesota concluded that the DNR could not enforce the State Rule and deny Haslund's requested variance since the BSM Ordinance —which had been approved by the DNR—permit- ted Haslund's development without a variance. In so concluding, the court held that the Lower St. Croix Act did "not permit the DNR to enforce the [S]tate [R]ule in place of the BSM [O]rdinance to achieve a desired result." Rather, the Act required the DNR to review the BSM Ordinance during the approval process. Also, the Act required the DNR to notify the city as to any conflicts between the BSM Ordinance and the State Rule and to require the city to make any necessary changes to bring the BSM Ordinance into compliance with the State Rule. The DNR had not identified any potential conflict between the State Rule and the BSM Ordinance. Instead, it had ap- proved the BSM Ordinance. That approval, concluded the court, was effective and binding on the DNR. Case Note: The DNR had argued that it could enforce the State Rule (superior to the BSM Ordinance) because the DNR had ap- proved the BSM Ordinance as being in only "substantial com- 8 © 2010 Thomson Reuters 16.8