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.. & Albert (cont): (I won't read all of it because it is rather lengthy) ~ The Governing body of any municipality, adopting or having affect in its own ordinance on official matters shall provide by ordinance by Board of Appeals or Adjustment. The Board shall have the power set forth in Section 462.357, Sub-division 6, and 462.359 . Subdivision 4. ~cept as otherwise provided by Charter, the governing party may provide alternatively that there be a separate court of appeals and adjustments or that the governing body (which you have done in this case) or a planning commission or a committee of the planning commission serve as the Bo;;rd of Appeals or Adjustment, and it may provide an appropriate name for the remaining provision of that applys to a situation where the Council does not serve as the BODrd, and, therefore, is not applicable. Hovrever, the authority and jurisdiction of the Board of Appeals is strictly limited by statute. I assume that you have read the petition and statutes found in 462, Section 358.357, Section 6. Appeals ano. adjustments. Appeals to the board of appeals and adjustments may be taken by any affedted person upon the complaint with any reasonable conditions imposed by the zoning ordinance. The board of appeals and adjustment has the following powers respect of the zoning ordinance: 1. To hear and decide appeals where it is alleged that there is an error in any order requirement, Qecis~on or determination made by an administrative officer in the enclosure of the zoning ordinance. 2. To hear requests for variances from the literal provision of the ordinances. ('rne rest of section 2 has to dO with the question of hearing questions with regard to variances.) 3. There is one other section that I did not mention in my motion. ~t is mentioned in subdivision 4 and that has to do where there is an appeal from denial in a building permit ~62.358, Subdivision 5. If you read the petition, there is no allegation in here at all in the petition anywhere th2t has to do with an error in any order, decision, requirement, or determination made by an administrative officer in the enforcement of the zoning ordinance. In Minnesota Law, in that point, is clearly shown in the case of Hopkins verse Balsom (?) 366 Minnesota 163. Where the court holds that whether or not the Council amenaing a zoning ordinance is acting in an admin1strative or legislative . capacity. That is acting in a legislative capacity cannot in an administrative capacity. So under the first section, the only thing that you can review is the sub-order that the zoning officer made in regard to the administration of zoning ordinance. For example, if a building was improperly set on a lot, or the set back wasn't right or someother non- conforming use. There is an appeal on that basis....only. The second basis lies where there is request for a variance and the third has to do with a permit. None of these three appear in the petition that is before you. Th1S petition merely seeks to review the action of the council that it put on two dates as I recall the 24th of March and the 14th of A~ril. There is no allogation that there was a failure to force an ordinance and it cannot apply to the amendment section because the amendment section states alone as to how the ordinance can be amendea. So that it is not an administrative act, that is a legislative act and there is a difference between the two and, therefore, since none of the areas are covered in the pe~ition, this petition has no bearing in front of the BoDrd. I did notice that the chairman said that there would be a report made back from the Plannnng Commission that certainly does not apply in this case because there is no a allogation that is proper which brings this matter to the board of adjustment, therefore, 1 request that this petition be dismissed because on its face it states no qualification to be before the Bo&rd of Adjustment. Cox: Do you have anything to be heard on that? Mr. Oliphant: Just one moment please. F1rst off, Mr. Albert's request for a motion is untimely. He already has submitted himself to the juristiction of the court. Not asking for a redeem (?) No.2, taking a positive action to be a member of the council. He thereby submitted himself to the juriSdiction. He now brings up a jurisdictual issue .hoPing to obtain a dismissal...... Simple, that 1n my mJ.nd it is untimely. First before he took affirmative action there might be some basis to it. In addition to that it is my common sense judgement that matters liKe this should definitely be heard by Board of Adjustments in the communities in which these problems arise. I feel very strongly that communities ought to settle their own problems. People who neither agree~