This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1323

Clifford J. Kronebusch, et al.,

Appellants,

vs.

Wabasha County Board of Adjustment, et al.,

Respondents.

Filed June 5, 2007

Affirmed

Halbrooks, Judge

Wabasha County District Court

File No. 79-C4-05-000230

Raymond L. Hansen, O’Brien & Wolf, L.L.P., 206 South Broadway, Suite 611, P.O. Box 968, Rochester, MN 55903-0968 (for appellants)

Jay T. Squires, Ratwik, Roszak & Maloney, P.A., 300 U.S. Trust Building, 730 Second Avenue South, Minneapolis, MN 55402 (for respondents)

Considered and decided by Lansing, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.

U N P U B L I S H E D O P I N I O N

HALBROOKS, Judge

Appellant landowners challenge the district court’s grant of summary judgment in favor of respondents Wabasha County Board of Adjustment and the County of Wabasha, arguing that (a) appellants’ action for declaratory judgment seeking approval of their variance request by operation of Minn. Stat. § 15.99, subd. 2(a) (Supp. 2003), was properly before the district court and (b) they are entitled to that relief as a matter of law. Because appellants failed to seek review of the zoning officer’s decision from the board of adjustment and did not exhaust their administrative remedies, we affirm.

FACTS

Appellants Clifford and Debra Kronebusch own just over six acres of land in Wabasha County, and they reside there in a single-family home. Appellants want to build and live in a second house on their property and sell the existing house to their son, so that they can keep the property in the family and their son can care for them as they grow older. To this end, they had several conversations with the Wabasha County zoning officer in the fall of 2003 and spring of 2004. The zoning officer told them that under the applicable zoning ordinance, only one dwelling was allowed per 80 acres of non-farm land.

In April 2004, appellant Clifford Kronebusch tried to file an application for a variance, but the zoning officer refused to accept it. On June 11, 2004, appellants again presented an application for a variance to the zoning officer, who again tried to refuse. When appellants told the zoning officer that they had talked to a county commissioner, who said that the zoning officer should accept the application, he did so.

On June 18, 2004, the zoning officer sent appellants a letter that all of the parties interpret as constituting a denial of their request. He also advised appellants that their application would not be presented to the board of adjustment because their variance request was for a prohibited activity under Minn. Stat. § 394.27, subd. 7 (2002).

Appellants did not appeal the zoning officer’s decision to the board of adjustment. Instead, they brought an action for declaratory judgment in district court. The district court granted summary judgment to respondents on the ground that appellants did not exhaust their administrative remedies by first appealing the decision of the zoning officer to the board of adjustment before seeking review in district court. This appeal follows.

D E C I S I O N

In reviewing summary judgment, the appellate court will address whether there are genuine issues of material fact and whether the district court erred as a matter of law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

We first address the issue of exhaustion of administrative remedies, which the district court found dispositive. Generally, a party “must first exhaust the administrative remedies available before bringing an action for judicial relief.” Amcon Corp. v. City of Eagan, 348 N.W.2d 66, 71 (Minn. 1984). This requirement has several purposes, including to protect the autonomy of administrative agencies created by the legislature to resolve particular problems, to promote judicial efficiency, to produce a record during the administrative process that facilitates judicial review, and, in some instances, to “reduce the need to resort to judicial review.” Zaluckyj v. Rice Creek Watershed Dist., 639 N.W.2d 70, 74-75 (Minn. App. 2002), review denied (Minn. Apr. 16, 2002). But “administrative remedies need not be pursued if it would be futile to do so.” McShane v. City of Faribault, 292 N.W.2d 253, 256 (Minn. 1980). The issues of exhaustion and futility generally present legal issues for an appellate court to review. Zaluckyj, 639 N.W.2d at 74.

The board of adjustment has the authority to “hear and decide appeals from and review any order, requirement, decision or determination made by any administrative official charged with enforcing” zoning ordinances. Wabasha County, Minn., Zoning Ordinanceart. 16, § 5, subd. 11 (2001); Molnar v. County of Carver Bd. of Comm’rs, 568 N.W.2d 177, 180 (Minn. App. 1997) (holding that “authority vested in the board of adjustment is for the review of decisions and actions taken by an ‘administrative official’”). An aggrieved person shall take such an appeal by filing a notice of appeal with the board of adjustment. Wabasha County, Minn., Zoning Ordinance art. 16, § 5, subds. 11, 12. The board of adjustment shall then hold a hearing, after which it may reverse, affirm, or modify the decision, giving reasons for its decision in writing. Id., subd. 12. The decision by the board of adjustment in hearing an appeal from an administrative decision is final, except that an aggrieved person may appeal to the district court. Wabasha County, Minn., Zoning Ordinance, art. 19, § 2, subd. 3 (2001). Thus, under the ordinance, appellants were required to first obtain review of the zoning officer’s decision from the board of adjustment, which then makes the final decision that is appealable to the district court. Id.

Appellants, however, argue that the zoning staff internally denied their application on the ground that it was for a use variance that could not be granted by the board of adjustment and therefore could not be presented to the board. Appellants argue that, using this logic, if their application could not be considered by the board of adjustment, they had no reason to appeal the zoning officer’s decision denying the application, because such an appeal would be as futile as their submission of the zoning-variance application itself.

A party may not decline to follow administrative procedures “simply because he believed that he would not be successful.” Davis v. Boise Cascade Corp., 288 N.W.2d 680, 683-84 (Minn. 1979). But futility may be shown when the governing body has made it clear that it will not provide administrative relief. Amcon Corp., 348 N.W.2d at 71-72. Appellants have offered no information indicating that an appeal to the board of adjustment was futile or that the board itself—as opposed to the zoning officer—would have denied their application.

Next, appellants argue that the administrative-review provisions of the ordinance more logically apply to other functions of the zoning staff and board of adjustment. They cite the zoning staff’s authority to issue a stop-work order as an example of an administrative decision that they assert could properly be appealed to the board of adjustment. Wabasha County, Minn., Zoning Ordinance art. 16, § 1, subd. 2. The language of the ordinance does not support this argument. Instead, it gives the board of adjustment broad authority to “review any order, requirement, decision or determination made by any administrative official,” which surely encompasses review of the decision by the zoning officer here. Id., § 5, subd. 11.

Appellants also contend that the wording of the ordinance required the zoning staff to forward their application for a variance to the board of adjustment, rather than making an internal administrative decision denying it, as was done here. Id., § 2, subd. 4.[1] They argue that the zoning officer committed an ultra vires act when he denied their application rather than forwarding it to the board of adjustment. But this is also a decision by the zoning officer that should have been appealed to the board of adjustment for review. Id., § 5, subd. 11.

Finally, appellants, in the alternative, contend that they did, in fact, perfect an appeal by filing a zoning-variance application because the application form is entitled “Notice of appeal or application for a variance.” They note that there is no additional reference to any other application, procedure, or fee to “appeal” the zoning officer’s internal denial of their application. Consequently, they assert that they perfected their appeal at the same time that they filed their zoning-variance application.

Respondents assert that this is a new argument on appeal that was not offered to the district court and is therefore not properly before this court on appeal. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). Further, the undisputed fact is that appellants submitted an application for a variance, not an appeal.

The decision of the district court granting summary judgment to respondents on the ground that appellants failed to exhaust their administrative remedies is affirmed.

Affirmed.

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[1] We note that this subdivision was later amended to provide that the zoning administrator is to “[r]eceive, file and, as appropriate after review, forward all applications for appeals, variances, conditional uses, and amendments to the designated official bodies.” Wabasha County, Minn., Zoning Ordinance art. 16, § 2, subd. 4 (2004) (emphasis added). This amendment would not change our result.