Filed May 19, 1998.
Appeal from the Department of Natural Resources, Agency File No. 72000108842.
Daniel B. Johnson, Myers Njus, P.A., (for relator).
Hubert H. Humphrey, III, Attorney General, David P. Iverson, Assistant Attorney General, (for respondent).
Considered and decided by Huspeni, Presiding Judge, Short, Judge, and Willis, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
The Minnesota Department of Natural Resources (DNR) denied certification of two city-approved variances involving Janelle Woodfill's second-floor deck and accessory structure. By writ of certiorari, Woodfill argues the DNR's decision is based on an error of law, and is arbitrary and capricious. We affirm.
A decision of the Commissioner of the DNR will be reversed only if it is unsupported by substantial evidence, is arbitrary and capricious, or is affected by other errors of law. See Minn. Stat. § 14.69 (1996) (listing grounds on which court may reverse commissioner's decision); Crookston Cattle Co. v. Minnesota Dep't of Natural Resources , 300 N.W.2d 769, 777 (Minn. 1980) (stating commissioner's decision may be reversed if arbitrary and capricious or unsupported by substantial evidence). If the record supports the agency's determination, courts will not substitute their view of the evidence for that of the agency. Dakota County Abstract Co. v. Richardson , 312 Minn. 353, 356, 252 N.W.2d 124, 126-27 (1977). The DNR may deny certification even after the local authority has granted a variance. Minn. R. 6105.0540, subpt. 1(A) (1997).
Woodfill argues a variance is not required for her second-story deck because it does not increase the height or encroach closer to the river than the preexisting structure. However, Woodfill's dwelling, which was constructed prior to Afton's adoption of the St. Croix River Ordinance, is a "substandard structure" under the ordinance and subject to the 200-foot setback requirement. See Afton, Minn., Mun. Code § 12-580(a) (1997) (defining substandard structures); Minn. R. 6105.0380, subpt. 5A(1) (1997) (setting rural district setback line at 200 feet from ordinary high water mark). Because Woodfill's deck extends toward the river, it does not fit within the setback exception for decks that extend laterally. See Afton, Minn., Mun. Code § 12-580(c)(2) (1997) (stating improvement may be permitted to extend laterally to river). In addition, Woodfill specifically waived her right to assert that no variance was required when she failed to include the deck in her original plans, signed a statement acknowledging that she needed to obtain approval if she made changes to those plans, and built the deck without obtaining prior approval. Under these circumstances, Woodfill needed a variance for her second-story deck, and the DNR's decision to deny certification of the project is not based on an error of law.
Woodfill also argues a variance is not needed for "repairs" on a detached, accessory structure. However, the record demonstrates: (1) the existing structure is in an advanced state of deterioration and the city building inspector described the finished product as a "new building"; (2) the preexisting structure was not damaged or destroyed by "fire, flood, wind, earthquake, or other calamity"; (3) Woodfill's proposed repairs include replacement of foundation block, supporting wall, and roof timbers, foundation excavation, and capping the garage floor; and (4) the proposed "repairs" do not fit within the ordinance's setback standards. Additionally, the city council granted Woodfill a variance to construct the new garage with the condition that she remove the detached garage. Given these facts, the Commissioner's determination that the proposed work amounts to "replacement," not "remodeling," is supported by substantial evidence.
After a careful review of the record, we conclude Woodfill had failed to establish the proposed use cannot be established under conditions allowed by the existing ordinances. See Minn. R. 6105.0520 (1997) (stating variances will only be granted if hardship is established and if variance will not change character of locality). The record shows Woodfill: (1) bought the property after the effective date of the relevant ordinance provision; (2) used the single-family residence without the addition of a second-story deck on the riverward side of the house; (3) had the option of placing the deck on the south side of her home; and (4) built a new conforming garage. In addition, all homeowners along River Road must comply with bluffline and river setbacks. Under these circumstances, the DNR's decision is supported by substantial evidence, is not arbitrary or capricious, or affected by an error of law.