LAKE MINNETONKA CONSERVATION DISTRICT BOARD OF DIRECTORS AGENDA 7:00 PM, Wednesday, August 26, 2015 Wayzata City Hall

Transcription

1 LAKE MINNETONKA CONSERVATION DISTRICT BOARD OF DIRECTORS AGENDA 7:00 PM, Wednesday, August 26, 2015 Wayzata City Hall 1. CALL TO ORDER 2. ROLL CALL 3. APPROVAL OF AGENDA 4. CHAIR ANNOUNCEMENTS, Chair Baasen 5. APPROVAL OF MINUTES- 7/22/15 LMCD Regular Board Meeting (to be ed) 7/27/15 LMCD Special Meeting 8/10/15 LMCD Special Meeting 8/12/15 LMCD Special Board Meeting 6. APPROVAL OF CONSENT AGENDA A) Audit of vouchers (7/31/15-8/15/15) and (8/16/15 8/31/15) B) July financial summary and balance sheet 7. PUBLIC COMMENTS- Persons in attendance, subjects not on the agenda (limited to 5 minutes) 8. PUBLIC HEARING Driftwood Shores Association, 2016 new multiple dock license (minor change) and variance applications to reconfigure the multiple dock facility on Harrisons Bay 9. OTHER BUSINESS A) Chair update of 7/27/15 and 8/10/15 LMCD Special Meetings relating to littering on Lake Minnetonka B) Review of draft electronic shock drowning documents from Ed Lethert C) Discussion of a process for consideration of a municipal planned unit development dock license ordinance D) Accept resignation from Board member Jay Green as 2015 Vice Chair (consideration of nominations for the remainder of term)

2 E) Chair update of 2015 LMCD Strategic Plan project F) Chair update on 2015 LMCD Executive Committee review of action plan for Executive Director Greg Nybeck 10. UPDATE FROM STANDING LMCD COMMITTEES 11. EXECUTIVE DIRECTOR REPORT 12. OLD BUSINESS 13. NEW BUSINESS 14. PENDING LITIGATION- Update on Minnesota Court of Appeals Ruling relating to Application of EOF Investments, LLC, #A (Note: Board may vote to discuss this agenda item in a closed session) 15. ADJOURNMENT

3 ITEM 5 LAKE MINNETONKA CONSERVATION DISTRICT SPECIAL MEETING 8:00 A.M., Monday, July 27,2015 Centennial Building Council Chambers CALL TO ORDER Baasen called the meeting to order at 8:00 a.m. ROLL CALL Lake Minnetonka Conservation District (LMCD) Members Chair. LMCD Board (Wayzata); Vice Chair Jay Green, LMCD Board (Mound); Da D ); Gabriel Jabbour, LMCD Board (Orono); Fred Meyer, LMCD Board, Jeff Morris, Board (Excelsior); Greg Nybeck, LMCD Executive Director. Non-LMCD Members present: Rich Brasch, Three Rivers D);Tom F Lake Minnetonka Association (L-MA); Tom McDowell, TRPD; Mayor lan, City of Orono; Sean Miner, The Pioneer; Rick Pinkus; Lt. Kent Vnuk, H Sheriff's Patrol(Water Patrol), Baasen thanked Jabbour for the visibility that affects all of Lake Minnetonka, not just Cruiser's recently discussed at the July 2SfflFegular LMCD gather input and feedback clean-up and offered on The problem of littering issue. This was this meeting was called to the LMA for their efforts (both Those in attendance had a of littering Minnetonka, A summary of the discussion is NEXT The hext Chambers)., August 16th, 0t 8 a,m, (Centennial Building Council ADJOURNMENT There being no further, the meeting was adjourned at 9:35 a.m. Dan Baasen Chair Jay Green, Vice Chair

4 ID U) CJ O ahd e'f a! a)d R3.its :0r ADtr Ei,?6 aoo Utr FE g> E-! :.r cq ze qr o. la."i m ol t-- GI h q); l-t o E E o u! J,q! F o E E o o o E o E o tr o F ^i! s = 6 4 E a o >.9c to oo co,^9 Y= OU I, ojs o: e> di *oz.ejia ZEer:. Eep<:e bo o o E F! o c f1.l d o d (J a o E.9 of vi tr d u o E o ; = d b il o E 'l o E d b tr i^fr,iis gigfi ;IgE siigiii tegiieeegi $sehji giil 5 4 i I tia.9 I E! r "q? fe 'ie Eg $ $ g 'i^i ci+r;6r = o tr O d d o.9 oo i;9'7 oe6^ :alo *Hra ; ps- tr6fo-- -1 P*E'da EH h; = Ed 36 ec,^ 6hn.91 =l e 398E9= F s ;5 { El a,e t * g E gi E E: trl:rdg! trldd.9p. 5 E E E qrl g;]g; Ee.='tiF El A 98+6: ep P- j" E S ln3iy"6 ol Yz,o.r-U,f HE E# 43: Hr.69pE ; 4!vi!3 S.g=!!h g i ;+ 3 3 E : ;8" H 6 x -a'; O: 5 5 I E 5 E: g.e. E 'l E E 5 f! E6i o o E 9? I L'; a + e, ^E i +! E E 5 I i, E -sc E! e I 5 - >5 o u F /^idi+riv; '61 ;.! E s i d Hl ].l EE93- xb3'-e* 'il ers.eoege :n*';'=; 'itli'fre;i.= >lr*;5.5 fi ; Hg E EE tfr"- E : o E o () (.) o o o F E e : ; o d d o! -e o c tr! u E! bj tr^ Yy', >z az FZ il; -6b F YO oc EA_U a:x XeQd ET EE E >,9 ef. '6 &5 Pu.ex s; E'; u3. e e b i'tr 6.* o H 6 x k 9 R-E V ot i = c 3e E.; S ilo I9 ;.Ea!E.=^ 3e.p,v s i vv E c o o it Ef ; -ts :v =9! so - se '2 Bg g E S; 5o P d Qe 'i9 U o HE Eg -8 E eg H'E : 3 E;" =:; d E E6 E- : E ae 2 9 :": oz n : -EE a.s E E o tr li: ts - = 5H 8. g 2E ae f o A tr F= JI F +r;ar

5

6

7

8 ITEM 5 LAKE MINNETONKA CONSERVATION DISTRICT BOARD OF DIRECTORS 5:30 P.M., Wednesday, August 12, 2015 Wayzata City Hall CALL TO ORDER Baasen called the meeting to order at 5:35 p.m. ROLL CALL Members present: Dan Baasen, Wayzata; Jay Green, Mound; Gary Hughes, Spring Park; Gregg Thomas, Tonka Bay; David Gross, Deephaven; Ann Hoelscher, Victoria; Gabriel Jabbour, Orono; Dennis Klohs, Minnetonka Beach; Fred Meyer, Woodland; Jeff Morris, Excelsior; Bret Niccum, Minnetrista; Rob Roy, Greenwood; and Deborah Zorn, Shorewood. Also present: Chris Jewett; Greg Nybeck, Executive Director; Judd Harper, Administrative Technician; and Emily Herman, Administrative Assistant. Member absent: Sue Shuff, Minnetonka Baasen opened the meeting and announced that Green had recently resigned as Vice Chair for the 2015 LMCD Board Officers, adding that nominations would be considered for this position on August 26 th. He turned the meeting over to Craig Rapp from CRAIG RAPP, LLC. An overview of a PowerPoint presented by Rapp included the following: Agenda 1. Overview of the June 10 th and July 8 th Sessions; a) Mission, Vision, and Values b) Strengths, Weaknesses, Opportunities, and Threats (SWOT) Analysis c) Strategic Challenges (Priorities) 2. Strategic Priorities (establish Outcomes, Indicators, and Targets) Mission Statement (draft)- The mission of the Lake Minnetonka Conservation District is to preserve and enhance the "Lake Minnetonka experience." This is accomplished by providing leadership in protecting, improving, and managing lake use. Rapp suggested it might be appropriate to define the "Lake Minnetonka experience" sometime later in this process. Vision Statement (draft)- Lake Minnetonka is a highly valued year-round asset with vibrant aesthetic, recreational, commercial, and natural qualities. These qualities and values will be protected and preserved for present and future generations. Values 1. Foundation for your Vision and Mission; 2. The top six values included: a) Accountability b) Collaboration c) Integrity d) Leadership e) Quality Results f) Stewardship of the Lake

9 Lake Minnetonka Conservation District Special Board Meeting August 12, 2015 Page 2 SWOT Analysis Strengths: Opportunities: 1) Legislative Authority 1) Quality Relationships 2) Partnerships & Working Relationships 2) Improved Communication 3) Dedicated Board & Knowledgeable Staff 3) Clearly Defined Vision & Mission 4) Regulations 4) Sub-Messages (leadership organization, "Protect & Preserve," Safety, & Education (internal & external) Weaknesses: Threats: 1) Communications 1) Communication 2) Vision/Mission 2) Board (14 members) 3) Board Function 3) Governance (not regulatory) 4) Board Make-up 4) Funding/Future State 5) Funding 6) Small Staff 7) Policies Strengths/Opportunities: Weaknesses/Threats: 1) Vision/Mission (internal clarity) 1) Effective Communication Policy/Plan 2) Communication Effectiveness 2) Governance 3) Quality Partnerships/Relationships 3) Funding (revenue future) 4) Safety/Protection 4) Vision/Mission 5) Special Interests Response Strategic Challenges: 1) Strategy/Plan- Vision and Mission (effective execution) 2) Communications 3) Governance 4) Partnerships 5) Safety 6) Stakeholder Responsiveness (needs and expectations) 7) Staff Capacity 8) Disaster response Strategic Priorities: 1) Strategic Plan Execution 2) Communications 3) Governance 4) Partnerships 5) Safety 6) Stakeholder Responsiveness

10 Lake Minnetonka Conservation District Special Board Meeting August 12, 2015 Page 3 Establish Outcomes, Indicators, and Targets Rapp stated that the purpose for tonight's meeting is to create Outcomes for these six Strategic Priorities. The first step in this process is to define the meaning of each priority, with a summary of the Board feedback that was brainstormed as follows: 1) Strategic Plan Execution- time based, measurable, who executes (specific), accountability, consequences, value created (meaningful), assessment, visible, and fresh (current) 2) Communications- clear, total, timely, pertinent, comprehensive (internal and external), unfiltered, evolve, tailored, and innovative 3) Governance- transparency, consistent, documented, integrity, fact-based, best practice (effective, decisive, and results oriented), proactive, team oriented/aligned, respectful, and process (standards) 4) Partnerships- supportive, inclusive, open, collegial/cooperative, friendly, results oriented, leverage resources/relationships, synergistic, to achieve neutral objectives, and win-win 5) Safety- accident prevention, effective, preserve, proactive, LMCD = safety (public awareness), creating and managing expectations, enforcement, reactive, education, and partnerships 6) Stakeholder Responsiveness- honesty, consistency, timeliness, comprehensive, all stakeholders, measurable, stakeholder understanding/education, and setting/managing expectations Rapp provided an overview of the following terms relating to this: Desired Outcomes (Outcome)- what outcomes are you seeking to achieve in each Priority area, including what does success look like (two to three outcomes is typical for each Priority). Key Outcome Indicator (KOI)- what would be an indicator of the success you desire, including what can/do you monitor, count and report to the outcome desired (one is typical). Target- the measurable end state that determines achievement of the desired outcome and KOI (need to consider what is a realistic target and might be a stretch, but achievable). Rapp established small working groups for each of the six Strategic Priorities. Each group was assigned a Strategic Priority and was asked to report back to the full Board with two to three Desired Outcomes (including a KOI and Target for each Desired Outcome). A summary of the small working group reports is outlined on the attached spreadsheet. What's Next Rapp summarized progress made at this session. He stated that he would prepare a report for the LMCD (based on the Board consensus at the three sessions). The next step is to identify Strategic Initiatives, which is typically staff driven, for each Strategic Priority, Desired Outcomes, KOIs, and Targets. Baasen thanked Rapp for his professional assistance on this vital LMCD project. Rapp has offered two additional sessions, which he believed should be discussed by the Board at an upcoming meeting.

11 Lake Minnetonka Conservation District Special Board Meeting August 12, 2015 Page 4 ADJOURNMENT There being no further discussion, the meeting was adjourned at 9:45 p.m. Dan Baasen Chair Gregg Thomas, Secretary

12 LMCD Strategic Plan Strategic Priority Desired Outcome Key Outcome Indicator (KOI) Target Strategic Initiatives Increased awareness of plan Stakeholder input All stakeholders/ partners rec d STRATEGIC PLAN EXECUTION Staff developed execution details Staff updates Quarterly Perf. Rept. delivered Consistent Board oversight of plan Agendas-plan linkage Quarterly Bd. reviews Clear, timely, straightforward, respectful stakeholder communications Evaluation system > rating COMMUNICATIONS Internally & externally transparent Survey results (internal & external) > rating Increased understanding of rules & regs Requests and questions Requests & questions reduced by GOVERNANCE Board & staff knowledgeable about LMCD code Increased transparency Self assessment results Board & staff evaluation results 100% 100% Decisions are fact based Self assessment results % of decisions Partners find value in our relationship Annual feedback results 100% found value PARTNERSHIPS All partners aligned w/ LMCD Vision & Mission Annual feedback results 100% support SAFETY STAKEHOLDER RESPONSIVENESS Partnerships expanded to meet needs Reduced illegal behavior No injuries # new partnerships New partnerships judged meaningful # of incidents: - Over consumption - Boating Emergency responses to injuries Incidents reduced by 50% reduction A safer lake Regulations/rules Increased consistent safe practices Increased Bd. & stakeholder understanding of our role Standard communication protocols in place A) Survey results B) Complaints Protocols in place A) % increase in understanding B) % reduction Comprehensive set of protocols adopted

13

14

15

16

17

18

19

20

21

22

23 ITEM 6B LMCD MONTHLY CASH FLOW CHART JULY, 2015 Administration 2015 General Revenue/Expense $80,000 $70,000 $60,000 $50,000 $40,000 $30,000 $20,000 $10,000 $- Revenue (That Month Only) Expense (That Month Only) $400, General Ending Cash $350,000 $300,000 $250,000 $200,000 $150,000 $100,000 $50,000 $- General ending cash Budget (16% of 2015 Annual Admin. Expenses)

24

25

26

27

28

29

30

31

32

33

34

35

36

37

38

39

40

41

42

43

44

45

46

47

48

49

50

51

52

53

54

55

56

57

58 ITEM 14 This opinion will be unpublished and may not be cited except as provided by Minn. Stat. 480A.08, subd. 3 (2014). STATE OF MINNESOTA IN COURT OF APPEALS A In re Application of EOF Investments, LLC Filed August 10, 2015 Affirmed in part, reversed in part, and remanded Worke, Judge Lake Minnetonka Conservation District Timothy J. Keane, Todd J. Guerrero, Kutak Rock LLP, Minneapolis, Minnesota (for relators Matt Johnson, Susanne Johnson, David Feldshon, Archelle Georgiou, Rodney Burwell, Barbara Burwell, Nivin MacMillian) Michael C. Couri, Couri & Ruppe, P.L.L.P., St. Michael, Minnesota (for respondent EOF Investments, LLC) George C. Hoff, Justin Templin, Hoff, Barry & Kozar, P.A., Eden Prairie, Minnesota (for respondent Lake Minnetonka Conservation District) Judge. Considered and decided by Cleary, Chief Judge; Hudson, Judge; and Worke, WORKE, Judge U N P U B L I S H E D O P I N I O N Relators challenge the grant of a multiple-dock license and a variance to a marina by the Lake Minnetonka Conservation District. We affirm in part, reverse in part, and remand for further proceedings.

59 D E C I S I O N Relators here are property owners who live on Tanager Lake, a bay of Lake Minnetonka. They challenge respondent Lake Minnetonka Conservation District s (LMCD) grant of a multiple-dock license and a variance to respondent EOF Investments, LLC (EOF). EOF operates a commercial marina on Tanager Lake. Grants of licenses and variances are quasi-judicial determinations. Honn v. City of Coon Rapids, 313 N.W.2d 409, 416 (Minn. 1981). This court reviews the decisions of a quasi-judicial body, such as LMCD, using the substantial-evidence test. Watab Twp. Citizen All. v. Benton Cty. Bd. of Comm rs, 728 N.W.2d 82, 93 (Minn. App. 2007), review denied (Minn. May 15, 2007). The body s decisions must be legally sufficient and have substantial factual support in the record. Id. at Substantial evidence is (1) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (2) more than a scintilla of evidence; (3) more than some evidence; (4) more than any evidence; or (5) the evidence considered in its entirety. Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 464 (Minn. 2002). Code Relators first contend that LMCD erred in issuing a license under section of its Code of Ordinances (Code), because one of the necessary elements for that section to apply was not fulfilled. Section 2.015, subdivision 3(d), provides that a license shall not be issued if it would resul[t] in any further extension into non-conforming side setback areas than the existing dock. Relators contend that the variance granted by LMCD to EOF allows further extension of the dock. Relators claim that the variance 2

60 permits three dock slips to extend over the property line, whereas previously only one dock slip did so. We do not agree that LMCD violated its Code. LMCD s order granting the variance states that it is granting nothing more than what was allowed under a preexisting variance, granted in 1985: The extension over the zoning line of north opening slips on the north dock structure is the same as the extension allowed by the 1985 Order. Relators have provided diagrams which suggest that the site plan approved by LMCD differs from the site plan approved in 1985, but its assertions are unverifiable on the record before us. First, the 1985 site plan includes a notation that it is not to scale as well as a notation that the dock slip dimensions [were] added... as measured in [1990], so its accuracy cannot be relied upon for comparison purposes. Second, the 1985 diagram (even if it is an accurate depiction of what was permitted in 1985) indicates that the furthest-extending dock reaches four feet over the property line. LMCD s recently-granted variance also limits the furthest-extending dock slips to four feet beyond the property line. Third, the number of dock slips permitted by the 1985 order to extend over the property line is not specified the order simply states that a variance is granted for the setback to the north, including an extension beyond the lot line extended [for] the slips opening toward the lot line. The text includes no limitation on the number of slips which may extend beyond the property line; that only one slip extends beyond the line in the not to scale diagram cannot overcome this language. In sum, evidence in the record supports LMCD s finding that there is no difference between the variance granted in 3

61 1985 and the variance granted here. If the variances granted are identical, there is no further extension of the docks that would render use of section inappropriate. In the alternative, relators assert that section cannot apply at all to LMCD s grant of a license and variance because, by its language, section only applies to docks lawfully in existence, and EOF s dock is illegal. We do not agree that the dock is illegal. The record shows that at least one of EOF s docks was not in compliance with the variance granted in But under the Code, an activity is unlawful if the actor is without a currently valid license. LMCD Code of Ordinances (LCO) 1.06, subd. 2 (2015). EOF was issued licenses every year since 1985, including 2013 and , the time period during which this dispute arose and was contested. It is true that the licenses granted to EOF over the years were conditioned upon compliance with the variance granted in 1985, but lack of compliance with a condition of a license, such as a variance, is merely grounds for revocation of [a] license, LCO 1.06, subd. 9 (2015), and EOF s license was never revoked. Procedural due process Relators next argue that their procedural due process rights were violated by the manner in which LMCD approved EOF s requests for a multiple-dock license and a variance. Whether the government has violated due process rights is reviewed de novo. Sawh v. City of Lino Lakes, 823 N.W.2d 627, 632 (Minn. 2012). Procedural due process 1 The 2014 license was granted to EOF on October 8, 2014, so there was a period of time during which EOF s license application was pending that it did not have an in-force license. However, under the Code, [a]ll licenses shall be for a term of one calendar year, LCO 1.06, subd. 6 (2015), and the license issued to EOF expired on December 31, Nothing in the Code prohibits retroactive issuance of a license. 4

62 requires, at minimum, (1) notice and (2) a meaningful opportunity to be heard before a party s rights are infringed. Id. These basic requirements persist in the land-use context, but quasi-judicial proceedings do not invoke the full panoply of procedures required in regular judicial proceedings. Barton Contracting Co., Inc. v. City of Afton, 268 N.W.2d 712, 716 (Minn. 1978). In the quasi-judicial context, the opportunity to present information and argument to rebut opposing statements is an indication that sufficient due process protection was provided. Id. Relators contend that LMCD violated its Code because it did not hold a full public hearing before it issued EOF the license and variance. Relators claim that this violation means that they did not have an adequate opportunity to be heard. But following EOF s applications for a multiple-dock license and a variance, LMCD held a full public hearing on August 27, Relators argue that because the site plan attached to EOF s applications was amended after the August 27 hearing, another full hearing was required before approval. Relators note that, following amendments to the site plan, EOF s applications were processed using portions of the Code that govern reconfiguration of non-conforming structures. Relators point to language stating that [a]n application for reconfiguration of a non-conforming structure shall [require] a public hearing on the application. LCO 2.015, subd. 4(a)-(b) (2015). But EOF did not apply for reconfiguration of a non-conforming structure; it applied for a multiple-dock license and a variance. Thus, the governing portions of the Code are sections 1.07, subdivision 6 (governing hearings for variances), and 1.06, subdivision 3 (governing application for and issuance of licenses). These portions of the Code were not violated. 5

63 We are further satisfied that relators had sufficient notice and opportunity to be heard. See Sawh, 823 N.W.2d at 632 Though a public hearing was not required under the Code, LMCD notified relators two days ahead of the meeting at which issuance of the license and variance was to be determined. Relators attorney conferenced with LMCD staff two days prior to the meeting. At the meeting, LMCD heard public comment, and relators attorney raised concerns, objections, and submitted a letter on behalf of his clients. Relators also contend that a full hearing was required because the site plan as amended after the August 27 hearing could have a greater adverse impact than the site plan that was considered on August 27. Relators primary concern is that the amended site plan permits a greater number of jet skis. First, relators cite no legal authority to support their contention that a greater relative adverse impact requires a hearing. Second, relators concede that according to the portions of the Code under which EOF s applications were granted, the Code contains no meaningful restrictions on jet skis. It is unclear what the hearing requested by relators would accomplish. Third, concerns regarding jet skis, and their potential for noise, wake, and lake-bottom erosion, were brought up at the August 27 hearing. Relators do not contend that LMCD was unaware of their concerns regarding jet skis in the context of EOF s applications. We conclude that relators due process rights were not violated by the manner in which LMCD granted EOF s applications. 6

64 Legal standard for variance Finally, relators argue that LMCD applied the wrong legal standard in granting the variance to EOF. The standard governing the grant of the variance comes from the Code, which is equivalent to an ordinance. See Minn. Stat. 103B.641, subd. 1 (2014) (stating that LMCD s rules and regulations have the effect of an ordinance). Interpretations of... ordinances are questions of law that this court reviews de novo. Clear Channel Outdoor Advert., Inc. v. City of St. Paul, 675 N.W.2d 343, 346 (Minn. App. 2004), review denied (Minn. May 18, 2004). Because we are unable to determine the legal sufficiency of LMCD s choice of standard in granting the variance, we reverse the grant of the variance and remand for further proceedings. The difficulty stems from the Code itself, which according to its text describes three standards for granting a variance. Section 1.07 of the Code governs variances. Subdivision 1 of this section, entitled General Statement, states that [w]here practical difficulties or particular hardships occur..., [LMCD] may permit a variance from the requirements of this Code. (Emphasis added.) Subdivision 6, however, entitled Hearings, provides that LMCD may grant a variance from the literal provisions of this Code in instances where their strict enforcement would cause undue hardship because of circumstances unique to the individual property. (Emphasis added.) These standards are distinct from one another. See Krummenacher v. City of Minnetonka, 783 N.W.2d 721, (Minn. 2010) (discussing the distinctions between the practical difficulties, particular hardship, and undue hardship standards in the context of granting a variance). None of the terms emphasized above are defined in the Code. See LCO

65 (2015). Unsurprisingly, relators contend that the undue hardship standard applies, while LMCD contends that the practical difficulties standard applies. In LMCD s order granting EOF the variance and multiple-dock license, the language used is unclear. It states that [LMCD] finds that there is a hardship... within the meaning of LMCD Code Section 1.07 and that granting the variance amendment as requested is consistent with the spirit and intent of the Code. (Emphasis added.) It does not say particular hardship or undue hardship, nor does it reference a specific subdivision of section LMCD is not permitted to choose whichever standard it wishes when considering a particular application for a variance, because such flexibility as LMCD expresses the matter in its brief 2 would be arbitrary. See Rodne v. Comm r of Human Servs., 547 N.W.2d 440, (Minn. App. 1996) (stating that the determinations of quasi-judicial bodies are reviewed for arbitrary action). We must examine the Code to determine which standard is appropriate to use in this case. See State v. Irby, 848 N.W.2d 515, 518 (Minn. 2014) ( [w]e begin with the text ). Our supreme court has provided guidance for situations where, as here, provisions seem to conflict. If a general provision in a [code] conflicts with a special provision in the same... [code], we interpret the two provisions, if possible, in a manner that gives effect to both 2 EOF s brief similarly states that LMCD does not have to apply the hardship standard and that LMCD has the freedom to choose among the standards. The argument apparently is that LMCD can simply list every standard in its Code and then choose whichever standard it wishes to apply to each variance application. This is a recipe for favoritism and for arbitrary and capricious decision-making. 8

66 provisions. But if the conflict between two [codes] is irreconcilable, the special provision prevails and will be interpreted as an exception to the general provision, unless the general provision was enacted at a later session and it is the manifest intent of the [enacting authority] that the general provision prevail. Nielsen v Honda Accord, 845 N.W.2d 754, 756 (Minn. 2013). Here, there is no way to reconcile these distinct standards, and we must interpret the Code according to the specific provision articulated in subdivision 6. Viewed in light of section 1.07 as a whole, subdivision 1 is a general statement of purpose while subdivision 6 lays out specific procedures which are to be followed in granting a variance. EOF argues that if an ordinance is ambiguous it must be interpreted in favor of the landowner and against the local government, citing Frank s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604 (Minn. 1980). This case is inapposite. Frank s Nursery Sales was denied a building permit, but argued that it qualified as a lawn and garden center as defined in Roseville s zoning ordinances, and thus Roseville had no basis upon which to deny the permit. Id. at Frank s Nursery Sales was government versus landowner (Roseville versus Frank s Nursery Sales). This case is landowner versus landowner (the relators versus EOF), because LMCD granted the variance to EOF, which relators argue adversely affects them. And even if this case is viewed as government versus landowner, the applicable landowners are the relators, who argue that they will suffer the negative implications of the government action, just as was argued in Frank s Nursery Sales. Id. 9

67 LMCD has made no attempt to argue that its grant of a variance would satisfy the undue hardship standard. But whether EOF s application for a variance satisfies this standard is a determination for LMCD in the first instance. Further findings of fact may be necessary. We thus reverse LMCD s grant of the variance and remand for consideration of EOF s variance request under the undue hardship standard. Affirmed in part, reversed in part, and remanded. 10