Posted by: Patricia Salkin | January 12, 2011

MN Appeals Court Upholds Denial of Amendments to Conditional Use Permit Based on Developer’s Actions

Eagle Nests obtained a conditional use permit for a 16-unit development accompanied by nine permanent mooring sites for boats.  The developer later wanted to increase the number of mooring sites to 16 and applied for a variance.  The Board of Adjustment denied the variance but despite the denial, the developer constructed seven more mooring sites.  Eagle Nests successfully obtained an after-the-fact variance for the added sites and applied for an amendment to its conditional use permit.  The amendment to the conditional use permit was denied because the location of the use was inconsistent with the local pattern of development and because the use would injure other properties in the area. 

The Appellate Court gave deference to the zoning authority decision and looked to see whether there was a rational basis for the denial. The Court determined that the additional mooring sites violated a shoreland ordinance because 70% of the shoreline in the impact zone was not kept in its natural state.  The developer also removed more vegetation than was permissible.   These errors provide a rational basis for the Board of Adjustment to deny the amendments to the conditional use permit.  Additionally, the planning commission determined that the pattern of development on the lake was not to increase density but granting the amendments would do just that.  The Appellate Court affirmed the lower court’s decision because the developer violated the shoreline ordinance and the decision to deny the amendments to the conditional use permit were supported by substantial evidence.

Eagle Nests Townhome Assoc.v. Aitkin Co. Planning Commission, 2010 WL 5154292 (Minn.App. 12/21/2010)

The opinion can be accessed at: http://www.lawlibrary.state.mn.us/archive/ctapun/1012/opa100093-1221.pdf


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Categories

%d bloggers like this: