Mathew Davis, et al., Appellants,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-2019

Mathew Davis, et al.,
Appellants,

vs.

Le Sueur County Planning and Zoning Board of Adjustment, et al.,
Respondents.

Filed May 29, 2018
Affirmed
Hooten, Judge

Le Sueur County District Court
File No. 40-CV-16-1017

Lawrence M. Shapiro, Katherine M. Swenson, Greene Espel PLLP, Minneapolis,
Minnesota (for appellants)

Kenneth H. Bayliss, Quinlivan & Hughes, P.A., St. Cloud, Minnesota (for respondents)

Considered and decided by Smith, T. , Presiding Judge; Rodenberg, Judge; and
Hooten, Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
Appellants seek a reversal of the respondent county board of adjustment’s decision
to deny a variance application for the construction of a swimming pool and pool shed,
arguing that the decision was arbitrary and capricious, grounded in legally insufficient
reasoning, and unsupported by substantial evidence in the record. Appellants also ask this

2
court to remand the matter to the board of adjustment with instructions to grant the
variance. We affirm.
FACTS
Appellant Mathew Davis and his wife 1 purchased property (the Property) along
West Jefferson Lake in Le Sueur County. The Property is locat ed on a long and narrow
peninsula that is approximately 150 feet wide from east to west. The peninsula projects
into the lake at the peninsula’s narrow northwest tip. The peninsula’s base, which is the
broadest part of the peninsula, connects to the mainland from the south. An image of the
peninsula from the record is reproduced below.

1 Davis’s wife is not a party to the litigation. Appellant CSE Properties, LLC is the other
appellant and current owner of the Property. Davis is a member of CSE Properties and for
purposes of simplicity we will refer to both appellants collectively as Davis.

3
Under Le Sueur County ’s zoning ordinance, the Property is zoned as recreational
residential, which requires any structure on the Property to be at least 100 feet set back
from the Ordinary High Water Level (OHWL) of the lake. See Le Sueur County, Minn.,
Zoning Ordinance (LSZO) § 13.2, subd. 5(E)(1) (2013). Davis had the previously-existing
house on the Property demolished and developed plans to construct a new house with a
swimming pool and pool shed. Because of the unique size and shape of the peninsula, all
three structures would be less than 100 feet from the OHWL, requiring Davis to apply for
a variance. See LSZO § 13, subd. 3(B) (2013).
In July 2016, Davis applied for a variance from the 100-foot setback requirement to
allow the planned structure to be built 55 feet from the OHWL. The application noted that
the setback for the new house would not be any closer to the lake than the origin al house.
Respondent Le Sueur County Planning and Zoning Commission Board of Adjustment (the
Board) held a hearing on Davis’s variance application in August 2016. At the hearing, the
Board read into the record a letter from an environmental resources spe cialist who
recommended that the variance be approved for the house but not for the pool and pool
shed. The Board also read an email into the record from the Minnesota Department of
Natural Resources (DNR), which indicated that the DNR had received severa l concerns
about the proposed variance and that approval of these types of variance requests should
be limited to “exceptional circumstances.”
The Board then voted unanimously to grant the variance for the house but
unanimously denied the variance for the pool and pool shed. In approving the variance for
the house, the Board filled out a Variance Findings of Fact form. The form provided that

4
“[a] variance may be granted only where the strict enforcement of the official control will
result in a practical difficulty” and that “[i]t is the responsibility of the applicant/landowner
to prove evidence that a practical difficulty exists .” Following the next provision, which
states that “[a] determination that a practical difficulty exists upon the consideration of the
following criteria ,” are five questions addressing the statutory requirements for the
issuance of a variance under Minn. Stat. § 394.27, subd. 7 (2016). The form also has two
questions addressing whether the variance is “in harmony with the gener al purposes and
intent of the official controls.” With reference to Davis’s request for a variance for the
house, all of these questions were answered yes on behalf of individual board members
with no further comment.
The Board utilized the same form in denying Davis’s request for a variance for the
pool and pool shed, with each board member answering all of the seven questions in the
negative. There were two additional comments on this form. Under the first question on
the form, which asked “[d]oes the property owner propose to use the property in reasonable
manner,” the Board explained that “practical need was not proven for a pool.” And for the
fifth question on the form, relating to whether “ the alleged practical difficulty involve d
more than economic considerations,” the Board explained that it “involves their preference
to use the property by installing a pool.”
Davis filed a complaint against the Board and Le Sueur County (collectively, the
respondents) in district court, seeking a declaratory judgment that the Board’s denial of the
variance for the pool and pool shed was arbitrary and capricious and contrary to law. He
also requested an order directing the Board to grant the variance. After holding a motion

5
hearing, the district court det ermined that the Board’s reasoning for denying the variance
was incomplete and could not provide for adequate review of the decision. The district
court thereby remanded the matter to the Board for further findings based o n the already-
existing record.
In June 2017, the Board conducted a second hearing to further consider Davis’s
variance application for the pool and pool shed. The Board discussed each of the statutory
requirements and voted that the variance did not satisfy any of the requirements. The Board
again voted unanimously to deny the variance and later issued written findings in support
of its decision.
Davis appealed the Board’s decision to the district court, which held another hearing
in November 2017. The district court upheld the Board’s denial of the variance application
for the pool and pool shed. The district court concluded that the record was sufficient to
support the Board’s findings and that the Board did not misapply the law or act arbitrarily
and capriciously. Davis now appeals to this court.
D E C I S I O N
Davis urges us to conclude that the Board’s decision is arbitrary and capricious and
that we should remand the case and instruct the Board to grant his variance application for
the pool and pool shed. He specifically argues that the rationale articulated in the Board’s
written findings from June 2017 was never discussed or considered by the Board and serves
merely to conceal its true motivation for denying the variance ––that Davis did not need a
pool and pool shed. He also argues that even if the written findings are consistent with the
Board’s deliberations, these findings lack substantial evidentiary support in the record and

6
fail to comply with the statutory requirements enumerated in Minn. Stat. § 394.27, subd.
7.
A board of adjustment h as broad discretion in deciding whether to grant or deny a
variance application. Kismet Inv’rs, Inc. v. County of Benton, 617 N.W.2d 85, 90 (Minn.
App. 2000), review denied (Minn. Nov. 15, 2000). Appellate courts review a board’s
decision by determining whether the board “was within its jurisdiction, was not mistaken
as to the applicable law, and did not act arbitrarily, oppressively, or unreasonably, and to
determine whether the evidence could reasonably support or justify the determination.” In
re Stadsvold, 754 N.W.2d 323, 332 (Minn. 2008) (quotation omitted). We independently
examine the record of the bo ard’s proceedings and review the board’s decision without
giving any deference to the district court’s findings and conclusions. Swanson v. City of
Bloomington, 421 N.W.2d 307, 311 (Minn. 1988).
I.
Davis challenges the district court’s first order remanding the matter back to the
Board, claiming that the record was not so inadequate as to preclude judicial review. His
argument implies that we may reverse the Board’s decision, without even considerin g the
merits of its post -remand actions, because the district court erred by ordering the remand
in the first place. Respondents counter that the district court’s decision to remand the
matter to the Board is not reviewable because it is untimely and moot.
A. Review of the Remand
Respondents apparently propose that a party challenging a district court’s remand
order in this context must seek discretionary review under Minn. R. Civ. App. P. 105.01

7
immediately after the ruling. We generally review only final orders or judgments. Minn.
R. Civ. App. P. 103.03(a). “A final judgment ‘ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment.’” T.A. Schifsky & Sons, Inc. v. Bahr
Constr., LLC , 773 N.W.2d 783, 788 (Minn. 2009) (quotation omitted). Respondents
concede that the district court’s remand in this case was not an appealable order because it
did not constitute a final order or judgment. Nevertheless, respondents argue that the
district court’s remand order is not reviewable, suggesting that the decision became moot
after the district court’s second order. We disagree.
One of the methods for which a party may seek discretionary review under rule
105.01 is if it can present a “compelli ng reason” for the immediate appeal. Gordon v.
Microsoft Corp. , 645 N.W.2d 393, 398 (Minn. 2002). In deciding whether to exercise
discretionary review, Minnesota appellate courts take into account the general disfavor of
interlocutory appeals and the pol icy of avoiding piecemeal appeals that could disrupt and
delay the litigation. Metro. Sheet Metal Journeyman & Apprentice Training Tr . Fund v.
County of Ramsey, 832 N.W.2d 844, 849 (Minn. 2013). Moreover, discretionary review
may be refused when judicial economy is best served by permitting the district court to
complete the proceedings. Id.
Respondents fail to present any compelling reason for why Davis should be required
to petition for discretionary review under rule 105.01 after the district court remanded the
matter to the Board. While the district court indicated that it could uphold the Board’s
decision, the district court ultimately concluded “it would be appropriate to remand this
matter back to the [Board] for more complete findings” and that the Board’s further

8
findings should be “based upon the existing record.” Interlocutory and piecemeal appeals
are generally disfavored. See Emme v. C.O.M.B., Inc., 418 N.W.2d 176, 179 (Minn. 1988).
And on appeal from a final judgment, appellate courts may review any order affecting the
judgment. Minn. R. Civ. App. P. 103.04. We therefore conclude that Davis’s challenge to
the district court’s remand order is reviewable and we will address the merits.
B. Remand as a Proper Remedy
Davis argues that the district court erred by ordering the remand in this case and that
we should reverse on this basis alone. In resolving a variance application, the board of
adjustment “must articulate the reasons for its ultimate decision, with specific reference to
relevant provisions of its zoning ordinance.” Earthburners, Inc. v. County of Carlton, 513
N.W.2d 460, 463 (Minn. 1994). Minnesota courts typically will order a board to issue a
variance if the board’s original decision denying the variance is arbitrary and capricious
and unsupported by the evidence because courts are often reluctant to allow the board “an
opportunity after the fact to substantiate or justify earlier decisions.” See Interstate Power
Co. v. Nobles Cty . Bd. of Comm’ rs, 617 N.W.2d 566, 577 (Minn. 2000) (quotation
omitted); see also Metro 500, Inc. v. City of Brooklyn Park , 297 Minn. 294, 299, 211
N.W.2d 358, 362 (1973) (alluding to “danger” of permitting local government body “after
several months of thought to present reasons perhaps totally unrelated to the actual reasons
for denying the permit” (quotation omitted)).
But, in Earthburners, the Minnesota Sup reme Court reversed and remanded a
county board’s denial of a conditional -use-permit application after concluding that the
board’s proceedings were incomplete and that the board failed to adequately articulate the

9
reasons for its decision. 513 N.W.2d at 4 62–63. The supreme court determined that a
remand would be appropriate because the board’s denial, justified on the mere reference to
“public testimony in opposition,” illustrated that several questions remained unanswered
and that the board’s decision wa s premature though not necessarily arbitrary. Id. at 463.
Similarly, in White Bear Rod & Gun Club v. City of Hugo, the supreme court remanded a
city council’s denial of a gun club’s application because the city council “cryptically” listed
the sources of its information in denying the application but failed to explain how it
evaluated this information. 388 N.W.2d 739, 742 (Minn. 1986). Accordingly, in the “rare
case” where “judicial review is impossible” because the record is so inadequate, a board
should have the opportunity to develop the record to allow meaningful review so long as it
confines its inquiry to the issues raised in the earlier proceeding. Interstate Power Co., 617
N.W.2d at 577.
The Board in this case held the first hearing to address Davis’s variance application
for the house, pool, and pool shed in August 2016. After the Board read the letter from the
environmental resources specialist into the record, which recommended granting the
variance for the house but denying the variance for the pool and pool shed, the chairperson
stated, “To me, it seems overkill. You’ve got a peninsula. You’ve got water on three sides
of it. And you want a pool.” The Board then took a voice vote with respect to each
statutory requirement, and each memb er voted that the pool and pool shed did not meet
any of the requirements. During the vote, the chairperson also stated, “I don’t think there’s
a practical need for those.” The Board then moved to deny the variance request for the

10
pool and pool shed. The motion passed and the chairperson explained, “Okay. You got a
house. No pool, no pool house.”
When the district court reviewed th e Board’s Variance Findings of Fact relative to
its denial of a variance for a pool and pool shed, it concluded that the Board offered some
reasons for its decision but that its reasoning was ultimately incomplete. 2 Citing
Earthburners, the district court remanded the matter to the Board for additional findings
based on the already-existing record . Based upon our review of the Board’s initial
decision, we are satisfied that the Board considered the statutory criteria in denying the
variance as evidenced by its answers to each of the seven questions on its form. However,
we agree that the decision does not sufficiently set forth the facts supporting its decision or
adequately explain its reasons for answering each of the questions in the negative. See
Earthburners, 513 N.W.2d at 463 (requiring county board to “articulate the reasons for its
ultimate decision, with specific reference to relevant pro visions of its zoning ordinance ”
(emphasis added)). We conclude that the district court did not abuse its discretion by
remanding for more complete findings.
II.
Davis insists that, even if the district cou rt did not err by remanding the matter to
the Board, we should reverse the Board’s denial of his variance application because the
Board’s written findings after the remand did not accurately reflect the Board’s
deliberations but were rather constructed in a manner to conceal the Board’s true rationale

2 We also note that the Board did not make any specific references to the relevant zoning
ordinance in its first decision.

11
that he had no practical need for a pool and pool shed. He attempts to highlight several
findings that do not mirror the Board’s actual deliberations at the previous hearings. Davis
also points out that the “practical need” of a pool and pool shed was not explicitly listed in
the Board’s written findings.
Upon remand, the Board conducted the second hearing in June 2017 to discuss
Davis’s variance application for the pool and pool shed. During the hearing, the Board
discussed each of the statutory requirements of Minn. Stat. § 394.27, subd. 7 in more
significant detail. The chairperson stated:
[E]laborating on our reasons, you know, last time it was stated
the practical need was not proven. The request is for a 55-foot
setback from the ordinary high water level, where the setback
allowed is 100 feet. This is a substantial intrusion into the
setback area, and it actually represents 45 percent of the
setback intrusion. There’s already, to me, significant intrusion
with the home, and approving this would only compound that
intrusion problem. If you’ ve driven by the lake, you can
certainly see the house very boldly on that peninsula. And, to
me, if you add a pool and pool shed, again, you increase the
visibility, not only from the road, but for the property owners
in the area or along the lake.

Many of the board members also expressed concerns that the setback variance could cause
issues with “erosion control” and could “change the character of that area.” And several
board members determined that the variance was not consistent with the zoning ordinance,
finding that granting the variance would contradict the Board’s objective of protecting and
preserving the quality of the local lakes. After the Board voted to deny the variance a
second time, it asked its attorney to draft written findings. The Board’s written findings
include, among others, that:

12
3. The variance requested that the residence, swimming
pool, and pool house be constructed within 55 feet of
the lake on both sides.
4. The variances for the pool and pool shed represent
substantial intru sions into the setback areas, because
they are seeking setbacks up to 45% of the setback
distance.
5. The pool and pool shed variance come on top of the very
substantial variance requested and granted for the
principal residence that is to be constructed on the site.
. . . .
7. The pool and pool shed would be placed in a location
that is elevated well above the lake and would be highly
visible to surrounding properties, given the location on
a peninsula in Lake Jefferson.
. . . .
13. There are no nearby pool houses or pools within 100
feet of Lake Jefferson.
14. Construction of the pool and pool house would present
problems related to erosion control. Construction of the
pool would contribute to runoff from the peninsula,
because all water falling on the pool area would result
in runoff.
15. The official controls and the comprehensive plan
recognize the importance of limiting development
within the shoreland impact zone. The variance granted
for the residence was a very significant deviation from
the minimum setback from the OHWL.
16. The variances requested are very substantial departures
from existing standards.
17. There is no circumstance unique to the property that
necessitates the construction of the pool and pool house.

First, Davis argues that the Board only offered one rationale for denying the
variance for the pool and pool shed in August 2016. But, the record shows that the Board’s
initial decision expressly found that the pool and pool shed did not fulfill any of the
necessary statutory requirements for granting the variance. Second, several of the Board’s
written findings after the remand accurately track comments made by the board members

13
during the June 2017 hearing. For example, the chairperson stated she was critical of the
variance request because it would be “a substantial intrusion into the setback area” and
would “increase the visibility” to neighboring property owners. Other board members
conveyed concerns regarding erosion problems that often arise from setbacks for shoreland
properties. And, contrary to Davis’s assertions regarding storage, the chairperson did state
that “[t]here’s no demonstrated practical difficulty. For example, on the pool shed or pool
house, whatever title you want to use, you know, those things can be stored in that house,
the residence.” Because the Board’s written findings are consistent with the reasons
presented at the June 2017 hearing, it would be inappropriate to assume that the Board
manufactured these reasons merely to mask its alleged motivation––that Davis did not need
a pool and pool shed —for denying the variance application . We will not reverse the
Board’s decision on the basis of its reasons being unrelated to its deliberations at prior
hearings. We move next to address whether the B oard provided legally valid reasons
supported by evidence in the record.
III.
Davis contends that the Board’s findings and conclusions in denying the variance
are unsupported by substantial evidence in the record and are legally insufficient to justify
its u ltimate decision. Appellate courts “examine the municipality’s action to ascertain
whether it was arbitrary and capricious . . . or whether the reasons given by the body were
legally sufficient and had a factual basis.” VanLandschoot v. City of Mendota Heights, 336
N.W.2d 503, 508 (Minn. 1983). Davis asks us to reverse the Board’s decision and order
the Board to grant his variance for the pool and pool shed. See Krummenacher v. City of

14
Minnetonka, 783 N.W.2d 721, 732–33 (Minn. 2010) (“In cases where a variance has been
denied, the general rule is that if the zoning authority’s decision is arbitrary and capricious,
the standard remedy is that the court orders the permit to be issued.” (quotation omitted)).
Minnesota statutes establish the requirements fo r a board of adjustment to issue a
variance that deviates from the requirements of an official control, such as a zoning
ordinance. Minn. Stat. § 394.27, subd. 7. The board may only grant a variance if the
variance is “in harmony with the general purpose s and intent of the official control and
. . . [is] consistent with the comprehensive plan.” Id. In order for the board to grant the
variance, the applicant must also establish that there are “practical difficulties” in
complying with the official control. Id. Practical difficulties mean: (1) “that the property
owner proposes to use the property in a reasonable manner not permitted by an official
control”; (2) “ the plight of the landowner is due to circumstances unique to the property
not created by th e landowner”; (3) “ the variance, if granted, will not alter the essential
character of the locality .” Id. But “[e]conomic considerations alone do not constitute
practical difficulties.” Id. Because a variance allows an applicant to use his property in a
manner originally forbidden by the official control, the applicant bears a “heavy burden”
in demonstrating that granting the variance is permissible. Luger v. City of Burnsville, 295
N.W.2d 609, 612 (Minn. 1980).
During the August 2016 hearing, the Boar d read two documents into the re cord: a
letter from an environmental specialist and an email from the DNR. The environmental
resources specialist stated in relevant part:

15
I would not recommend approval of the requested variance for
the pool and pool house . There is no practical difficulty for
these structures. The only reason for the variance request is to
allow for the construction of a pool area on a lot that does not
have sufficient room for a pool. If a pool is not constructed,
then there is no need for a pool house.
. . . .
If [the] variance is granted for the pool and pool house,
additional conservation practices will need to be installed on
the lot to offset the shortened setback from the OHWL for this
area. The applicant will need to work with the Environmental
Resources Specialist to provide these additional conservation
practices. This can include but is not limited to a rain barrel(s),
rain garden(s) or increased buffer area(s).

In addition, the DNR’s email provided that:
[P]lease be advised that [the] DNR has received several phone
calls of concern regarding the proposed Mathew Davis OHWL
setback variance on Lake Jefferson. As you know, shoreland
setbacks are needed to ensure adequate space between
structures and public waters in order t o protect against runoff
and pollution, and to preserve the natural shoreline. As such,
these types of variance requests are to be limited to
“exceptional circumstances” and must be carefully examined
to determine whether all statutory and local criteria are
satisfied.

As discussed previously, the Board held a second hearing in June 2017 and issued
written findings based on the record existing at the time of the August 2016 hearing. In its
written findings, the Board referred to the land use goals and policies of the relevant zoning
ordinance and comprehensive plan. The Board decided that Davis’s variance application
was not consistent with the goals of the zoning ordinance and the comprehensive plan to
preserve the areas adjacent to the lakes because it would result in a substantial expansion
in the shore impact zone and failed to account for the preservation of scenic resources in
an environmentally sensitive area. The Board also determined that the variance would

16
result in Davis using the property in an unreasonable manner due to the unique
configuration of the Property on a narrow peninsula and the substantial intrusion into the
protected shoreland area.
We focus our attention on whether the variance conforms to the policies of the
official control ––specifically the relevant zoning ordinance provisions ––and the
comprehensive plan. We also consider whether the variance would lead to the Property
being used in a reasonable manner . Ultimately, we conclude that the variance does not
meet these essential statutory requirements.
A. The Zoning Ordinance and the Comprehensive Plan
Davis asserts that the Board’s finding that the variance is in discord with the
purposes of the zoning ordinance and is inconsistent with the comprehensive plan is not
supported by the evidence. In determining the reasonableness of the Board’s decision, we
are guided by the standards established in the zoning ordinance. Kismet, 617 N.W.2d at
90. Stated otherwise, we will not conclude that a board of adjustment’s decision is arbitrary
“when it bears a reasonable relationship to the purpose of the ordinances.” 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).
Consistent with the statute, the zoning ordinance provides that “[a] variance may
not circumvent the general purposes and intent of this Section.” LSZO § 13, subd. 3(B)(1)
(2013). The pertinent purposes of the zoning ordinance include: (1) “[p] rotecting and
preserving agricultural land and natural resources,” (2) “[c]onserving the natural and scenic
beauty of the County,” and (3) “[m]inimizing environmental pollution.” See LSZO § 1(A).

17
The zoning ordinance and the comprehensive plan share the land use goals of conserving
and restoring natural resources, protecting the ecological systems of the natural
environment, and improving water quality in Le Sueur County.3
1. Erosion Control and Runoff
Davis claims that the Board’s findings regarding erosion control and runoff lack
factual support in the record. At the June 2017 hearing, two board members briefly
mentioned erosion as a possible result of a reduced setback. Davis frames these discussions
of erosion control as merely “generalized concerns” that are insufficient to deny his
variance application. See Bartheld v. County of Koochiching, 716 N.W.2d 406, 413 (Minn.
App. 2006) (explaining that local governing body may consider neighborhood opposition
to conditional -use permit only if it rests on concrete information rather than vague,
generalized concerns). We agree with Davis that the discussion of erosion control is vague,
and we find it difficult to conclude that this was an adequate reason for denial without
further context in the record.
But, the Board also found that “[c]onstruction of the pool would contribute to runoff
from the peninsula, because all water falling on the pool area would result in runoff.”
While none of the board members mentioned the term “runoff” during either hearing, these
concerns are likely based on the DNR’s email. In the email, the DNR stated, “As you
know, shoreland setbacks are needed to ensure adequate space between structures and

3 The Le Sueur County comprehensive plan is available online. Le Sueur County, Le Sueur
County Land Use Plan 10-14 (July 24, 2007), http://www.co.le-
sueur.mn.us/departments/environmental_services/planning_and_zoning/index.php
(follow “Le Sueur County Comprehensive Land Use Plan”).

18
public waters in order to protect against runoff and pollution, and to preserve t he natural
shoreline.”
Again citing Bartheld, Davis claims that the letter simply expresses “generalized
concerns” about runoff and pollution which are not supported by substantial evidence. See
716 N.W.2d at 413. We disagree for two reasons. First, when reading the email in context,
we interpret the concerns about runoff as specifically directed to Davis’s proposed
variance, not generally about water pollution from any structure built on shoreland
property. Second, Davis c onstrues the “generalized co ncerns” language in Bartheld too
broadly. There is a difference between neighborhood opposition to a conditional-use
permit based on noise and traffic worries, see id., and environmental concerns raised in an
email from the DNR. And, in arguing that the email does not satisfy the substantial-
evidence standard or that the Board should have requested more information about the
implications of runoff, Davis forgets that he bears the burden in showing that the variance
is permissible and consistent with the zoning ordinance. See Luger, 295 N.W.2d at 612.
He did not present any evidence at the August 2016 hearing that would alleviate the
concerns regarding runoff. Based on the evidence supplied in the DNR’s email, we
conclude that it was reasonable for the B oard to determine that Davis’s variance request,
with its risks of runoff, conflicted with Le Sueur County’s interest in minimizing
environmental pollution. See LSZO § 1(A).
2. Visibility
Davis also argues that the Board’s finding that the pool and pool she d “would be
highly visible to surrounding properties” lacked substantial evidentiary support in the

19
record. We note that the zoning ordinance directs the Board to consider the impact of the
development on neighboring property owners. See LSZO § 13, subd. 3(B)(1) (“In
considering a variance request, the Board of Adjustment must also consider . . . the
characteristics of development on adjacent properties.”). For example, the zoning
ordinance provides that in order for a swimming pool to be a permissible a ccessory
structure, the lighting for the pool must not cast light onto adjacent properties and a five -
foot fence must enclose the pool area. See LSZO § 13.2 , subd. 4(B) (2013). We also
reiterate that one of the zoning ordinance’s overarching land use goa ls is to preserve the
natural and scenic beauty of the area. See LSZO § 1(A).
Davis attempts to dismiss the Board’s concerns about visibility, stating that these
concerns were based solely on speculation of a non -existing pool and pool shed. We are
unpersuaded considering that Davis similarly speculates that the non-existing pool “would
certainly not be visible from the lake.” And, Davis does not discuss the potential visibility
of the pool house beyond speculating that it will be “f ar smaller” than the new house and
“will be partially screened from view”.
Adequate evidence is present in the record for us to conclude that the Board was in
a reasonable position to determine how the visibility of the pool and pool shed may impact
nearby properties. The Boa rd was able to review the site plan as well as several photos
and maps of the Property. See In re Krenik , 903 N.W.2d 224, 232 (Minn. 2017) (noting
city council’s review of various photographs of property in deciding to uphold city
council’s abatement order). Indeed, the Board conducted a site visit of the Property prior
to making its initial decision in August 2016. In Krenik, the supreme court concluded that

20
a city council’s decision regarding an abatement order to screen collector vehicles from
ordinary public view had sufficient evidentiary support in the record, emphasizing the
“visually based” and “fact-intensive” nature of the city council’s decision. Id. Similar to
the supreme court’s ruling in Krenik, the Board’s concerns about visibility are su pported
by evidence in the record and are consistent with the policies and goals identified in the
zoning ordinance.
B. Reasonable Manner
Davis also claims that the Board’s conclusion that he does “not propose to use the
property in a reasonable manner” lacked evidentiary support and applied the incorrect legal
standard. He believes that the Board substituted the statutory “reasonable manner”
requirement with a necessity-based standard. See Minn. Stat. § 394.27, subd. 7. Citing the
supreme court’s decision in Stadsvold, respondents counter that the “setback is nearly half
of the 100-foot setback requirement and would require significant intrusion on both sides
of the lake.” See 754 N.W.2d at 331 (explaining that one of six factors to be considered in
the “practical difficulties” analysis is “how substantial the variation is in relation to the
requirement”). We recognize that, in response to Stadsvold, the legislature amended the
prior version of Minn. Stat. § 394.27, subd. 7 in 2011 to limit the “p ractical difficulties”
standard to the three current statutory requirements. See 2011 Minn. Laws ch. 19 , § 1, at
106. Although Davis submitted his variance application after the amended statute went
into effect, and therefore we do not address the substa ntial-variation factor as an

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independent requirement, we may consider the degree of the variance in whether Davis
proposes to use the Property in a reasonable manner.
Davis asserts that the Board created an arbitrary double standard by granting the
variance for the house but denying the variance for the pool and pool shed, even though
the setback was the same for each structure. But the evidence in the record is consistent
with the Board’s apprehensions that the addition of the pool and pool shed would o nly
“compound” the problem on an already unique piece of property . The environmental
resources specialist recommended approving the variance for the house but not the variance
for the pool and pool shed, finding that the “lot is narrow” and “does not have sufficient
room for a pool.” In determining whether the evidence in the record supports the Board’s
decision, it is not our role to substitute our judgment for that of the Board ’s, even if we
believe the Board could have reached a different decision. See VanLandschoot, 336
N.W.2d at 509. We conclude that there is evidence in the record sufficient to support the
Board’s decision that Davis’s proposed variance does not satisfy the first practical
difficulty requirement because it does not result in him using the Property in a reasonable
manner.
Affirmed.