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February 10, 2015 1 Volume 9 1 Issue 3 Zoning Bulletin <br />ordinance [to] designate . . . certain land development activities as <br />conditional uses under zoning regulations." Notably, the court found that <br />the statute gave a town board "no authority to permit a conditional use that <br />the ordinance has not designated as a conditional use or to issue a peuuit <br />when the standards `stated in the ordinance' cannot be satisfied." <br />Here, the court found that the controlling provision of the Township's <br />ordinance directed that "[o]nly those uses specifically listed in this <br />Ordinance as being allowed within a particular district as a permitted, <br />conditional, interim, or accessory use may occur within that district." <br />(Helga Township, Minn., Land Use Ordinance art. V, § 3 (2011).) The <br />ordinance prohibited a landowner from engaging in any conditional use in <br />a district without a permit. (Township Ordinance, § 1(9).) <br />Also here, the Ordinance permitted only the following uses in the <br />Agricultural/Rural Residential District where Restore House's property <br />was located: 1. Fauns and agricultural uses; 2. Forestry; 3. Single family <br />residences; 4. State licensed residential facilities serving six or fewer <br />persons; 5. Class A home occupations; and 6. Accessory uses and <br />structures to the above principal uses. The Ordinance enumerated no <br />conditional uses for that zoning district. <br />Since the Board's statutory authority to grant any conditional use was <br />restricted to those conditional uses designated by ordinance, and the <br />Township's Ordinance did not designate any conditional uses (including <br />residential treatment facilities serving more than six residents), the court <br />concluded that: therefore, Restore House could not, as a matter of law, <br />show that the Ordinance's criteria could be satisfied, and therefore, the <br />Board had no legal authority to grant Restore House the requested <br />conditional use permit. <br />See also: Costley v. Caromin House, Inc., 313 N.W.2d 21, 27 (Minn. <br />1981). <br />Case Note: <br />Restore House had also argued that the Township had waived the argument of <br />having no legal authority to issue the CUP because it had failed to raise that <br />argument/issue during the CUP proceedings. The appellate court acknowledged <br />that it generally does not allow landowners to litigate issues that are not raised in <br />the zoning process. However, the court noted that exceptions applied—such as <br />when reviewing an issue first raised on appeal that is `plainly decisive of the <br />entire controversy on its merits. " Moreover, here, the court found was the "rare <br />situation" in which, in addition to the municipality's stated reasons for denying <br />the permit, the municipality simply lacked the legal authority to grant the <br />application. The court concluded that courts were not prevented by the doctrine of <br />waiver from affirming a municipality's denial of a conditional use permit based <br />on the municipality's lack of authority to grant the permit even if the municipality <br />first identifies its lack of authority during a judicial proceeding challenging its <br />bases for denying the permit. <br />8 © 2015 Thomson Reuters <br />