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REPORTER, 2d SERIES
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<br />MERRIAM PARI( COMMUNITY COUNCIL,
<br />INC., et al., Appellants,
<br />John Nagy, Plaintiff,
<br />V.
<br />Michael J. MCDONOUGH, Respondent,
<br />city of St. Paul, Minnesota, et al.,
<br />Respondents.
<br />No. 43639.
<br />Supreme Court of Minnesota.
<br />Sept. 14, 1973.
<br />Appeal from a judgment of the Dis-
<br />trict Court, Ramsey County, David E.
<br />Marsden, J., upholding city council's grant-
<br />ing of zone code variances to property
<br />owner to permit construction of a 32 -unit
<br />apartment building. The Supreme Court
<br />held that evidence justified conclusion that
<br />city council did not act arbitrarily, oppres-
<br />sively, unreasonably or unlawfully in
<br />granting the nonuse variances requested
<br />by property owner.
<br />Af firmed.
<br />Yetka and Scott, JJ., did not partici-
<br />pate.
<br />1. Municipal Corporations 063.1(2)
<br />With respect to decisions of municipal
<br />and other governmental bodies having the
<br />duty of making decisions involving judg-
<br />ment and discretion, it is not the province
<br />of trial court to substitute its judgment for
<br />that of the body making the decision, but
<br />merely to determine whether that body was
<br />within its jurisdiction, was not mistaken as
<br />to the applicable law, and did not act arbi-
<br />trarily, oppressively, or unreasonably, and
<br />to determine whether the evidence could
<br />reasonably support or justify the determi-
<br />nation.
<br />2. Zoning 0489
<br />Statute specifically prohibiting the
<br />granting of a variance permitting any use
<br />that is not permitted under the ordinance
<br />for property in the zone where the affect-
<br />ed person's land is located does not, by im-
<br />plication, prohibit the granting of nonuse
<br />variances such as those of area, height,
<br />setback, density, and parking requirements,
<br />if the granting thereof is in keeping with
<br />the spirit and intent of the ordinance and
<br />if refusal to grant a variance would cause
<br />undue hardship. M.S.A. § 462.357, subd. 6.
<br />3. Zoning 0538
<br />Evidence in zoning dispute justified
<br />determination that if variances were not
<br />granted the property owner would suffer
<br />undue hardship because of unique circum-
<br />stances not reflective of conditions general
<br />to the neighborhood, where setback re-
<br />quirement was unique to the tract, as com-
<br />pared to usual setback requirements, where
<br />off-street parking requirement was amend-
<br />ed one year after owner's application for
<br />variances were made, which undue delay
<br />was not the fault of the owner, and where
<br />general state of obsolescence of existing
<br />structures on the tract could reasonably
<br />have been considered by city council which
<br />granted variances as unique to the subject
<br />tract. M.S.A. § 462.357, subd. 6.
<br />Vincent, P. Courtney, Raymond W. Fari-
<br />cy, Jr., St. Paul, for appellants.
<br />John E. Daubney, St. Paul, for �Ic-
<br />Donough.
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