Opinion
No. C8-01-1136.
Filed April 2, 2002.
Appeal from the Agency Review.
Thomas G. Dunnwald, (for relators)
Arvid Wendland, Wendland Timmerman, (for respondent Watonwan County); and Brent Kueker, (pro se respondents); and Douglas Anderson, (pro se respondent)
Considered and decided by Harten, Presiding Judge, Anderson, Judge, and Stoneburner, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Relators Sharon and Bernard Schwardt challenge the reasonableness of the Watonwan County Board of Commissioners' decision approving a conditional-use permit for a confined hog-feeding operation. Relators contend the county board (1) failed to rebut concrete evidence of the operation's effect on the health of nearby residents; (2) did not require compliance with Watonwan County zoning ordinances; and (3) failed to make findings required by certain Watonwan County ordinances. We affirm in part and remand with instructions in part.
FACTS
On March 16, 2001, respondent Brent Kueker filed an application with respondent Watonwan County for a conditional-use permit (CUP) to build a hog feedlot housing over 700 animal units.
CUP applications in Watonwan County are first considered by the County Planning Commission (planning commission). The planning commission reports its findings and a non-binding recommendation to the Watonwan County Board of Commissioners (county board), which makes the final decision to approve or deny the application.
Relators are neighbors of the proposed feedlot. Upon learning of the CUP application, relators provided the planning commission with literature describing the harmful environmental and health effects of living near a commercial hog operation. At the planning commission meeting, relators opposed the feedlot, arguing that (1) the feedlot dust and odors would create health hazards for neighbors; (2) the feedlot, as planned, violated the county setback ordinance; and (3) property values near the feedlot would decline.
In response to relators' concerns, the planning commission, although it ultimately denied the application, attached four conditions to the CUP application: (1) that fast-growing trees be planted on the north and west sides of the feedlot to reduce wind-borne odors, according to a plan developed by the Natural Resource and Conservation Service (NRCS); (2) that the roads into the feedlot be chemically treated to produce less dust; (3) that manure-pit additives be used to reduce odors; and (4) that the neighbors living less than one mile from the feedlot be notified at least 24 hours before manure is spread. Although the planning commission defeated the proposal, under Watonwan County procedures, the proposal nonetheless went to the county board for consideration.
The county board voted to approve the CUP application on June 5, 2001, subject to the conditions adopted by the planning commission. This appeal follows.
DECISION
A county board's decision to grant a CUP is a quasi-judicial decision reviewed by writ of certiorari to this court. Molnar v. County of Carver Bd. of Comm'rs, 568 N.W.2d 177, 180 (Minn.App. 1997). On review, we consider whether the county board's application of zoning-ordinance use standards to a particular proposal was "arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it." Id. at 181 (quotation omitted); see also Honn v. City of Coon Rapids, 313 N.W.2d 409, 417 (Minn. 1981) (noting that in special-use permit cases, "reasonableness is measured by the standard set out in the particular local ordinance").
Individuals challenging a CUP approval face a heavier burden than those challenging a CUP refusal. Bd. of Supervisors v. Carver County Bd. of Commr's, 302 Minn. 493, 499, 225 N.W.2d 815, 819 (1975). Provided the county board's decision "is at least doubtful, or fairly debatable," we will not replace it with our own. Arcadia Dev. Corp. v. City of Bloomington, 267 Minn. 221, 226, 125 N.W.2d 846, 850 (1964).
I. Board's Failure to Refute Concrete Evidence
Relators argue that the county board's decision to grant the CUP was arbitrary and unreasonable because the board ignored relators' argument that the proposed feedlot would harm the health and welfare of nearby residents. Because relators presented no expert evidence linking the proposed feedlot to harmful health effects, and because the county board adopted every CUP condition proposed to the zoning commission by relators, we disagree.
A county board may consider neighborhood opposition to zoning requests. See Swanson v. City of Bloomington, 421 N.W.2d 307, 313-14 (Minn. 1988). But unsupported neighborhood opposition alone does not provide a legally sufficient reason for denial. Chanhassen Estates Residents Ass'n v. City of Chanhassen, 342 N.W.2d 335, 340 (Minn. 1984).
Here, relators presented testimony and written doctors' statements to show that they and their children experience asthmatic and allergic reactions to hog odor, hog dander, and hog-farm dust and they are thus justifiably and understandably concerned about the proposed development. But relators offered no expert testimony establishing a connection between the proposed feedlot and harmful health effects. Relators' reliance on SuperAmerica Group, Inc. v. City of Little Canada, 539 N.W.2d 264 (Minn.App. 1995), review denied (Minn. Jan. 5, 1996), is therefore misplaced. In that case we stated that expert testimony cannot be rejected without adequate supporting reasons. Id. at 267. Here, neither the planning commission nor the county board heard expert testimony and the medical evidence in the record does not establish that the proposed feedlot will cause the harmful effects alleged by relators.
Nor did the county summarily reject relators' concerns. The four CUP conditions adopted by the planning commission and the county board were all proposed by relators. The county board reasonably considered the public welfare before approving the application. See Carver County, 302 Minn. at 498-99 n. 3, 225 N.W.2d at 819 n. 3 (noting permit should be approved when conditions attached to granting of permit adequately addressed issues raised in opposition); R.L. Hexum Assocs., Inc. v. Rochester Township, Bd. of Supervisors, 609 N.W.2d 271, 277 (Minn.App. 2000) (upholding grant of CUP when conditions addressed opponents' concerns).
The county board's decision to grant the CUP was neither arbitrary nor unreasonable; the board did address relators' environmental and health concerns.
II. Board's Failure to Comply With the Setback Requirement
Relators argue that board's approval of the CUP was arbitrary, unreasonable, and contrary to the evidence because the feedlot does not meet the setback requirement established in the zoning ordinance. Relators contend that an aerial survey shows that the setback distance is just short of the one-half mile minimum statutory setback. Relators contend that the county board arbitrarily granted the CUP before establishing, as a threshold matter, that the project satisfied the ordinance setback requirements.
Relators are correct to argue that a failure to meet a specific zoning ordinance standard may justify denial of a CUP application. See Inland Constr. Co. v. City of Bloomington, 292 Minn. 374, 390, 195 N.W.2d 558, 568-69 (1972).
Here, both the planning commission and the county board discussed the setback requirement extensively. The Watonwan County Environmental Services Director repeatedly stated in hearings that no permit will issue for this project until the setback requirement is satisfied, and noted that he would order a survey conducted at respondent Kueker's expense if a justifiable concern about the setback persists.
There is merit in relators' argument that the county board's failure to definitively resolve the setback issue before approving Kueker's project makes the CUP approval process seem less orderly and predictable than one might hope. The county board's failure to resolve this issue, however, is not sufficiently grave to render the process arbitrary or unreasonable. But because Kueker has agreed to a survey of the parcel to assure compliance with the setback requirement, we remand to the county board with instructions to require Kueker to complete a survey verifying that he has met the setback requirement before the CUP is formally issued. See Olsen v. City of Hopkins, 276 Minn. 163, 170-71, 149 N.W.2d 394, 399 (1967) (remanding for a survey to determine the depth of a parcel of land in a zoning dispute).
3. Board's Failure to Make Findings
Relators argue that the county board's decision to approve the CUP application was arbitrary as unsupported by adequate findings.
To determine the adequacy of the county board's findings, we must determine whether the county's explanation of its reasons for granting the CUP are sufficient to permit judicial review. See Sunrise Lake Ass'n, Inc. v. Chisago County Bd. of Com'rs, 633 N.W.2d 59, 61 (Minn.App. 2001) (concluding county board's granting of CUP was inadequately supported where record "does not provide appropriate findings or reasons to grant the CUP"). The record must provide a clearly articulated rationale for the county board's decision and make specific reference to the applicable local zoning ordinance. See Earthburners, Inc. v. County of Carlton, 513 N.W.2d 460, 463 (Minn. 1994); Kehr v. City of Roseville, 426 N.W.2d 233, 235-36 (Minn.App. 1988) (complete absence of contemporaneous findings setting forth reasons for county's decision renders decision arbitrarily unreviewable).
The Watonwan County zoning ordinance provides that the planning commission may not recommend granting a CUP unless it finds that the proposed conditional use will not impede the development and improvement of land in the immediate vicinity; will not create an environmental hazard to neighboring properties; and will not generally constitute a nuisance to nearby residents' use of their land. Watonwan County, Minn., Zoning Ordinance § 13(D).
Relators' assertion that the county board failed to provide adequate reasons for the CUP approval is not supported by the record. The planning commission made, and the county board adopted, findings of fact addressing every applicable criterion found in the "Standards" section of the Watonwan County CUP ordinance. In its final approval of the CUP, the county board also adopted the four conditions proposed by relators. We conclude that the county board did not fail to make adequate contemporaneous findings based on the statutory standard and the board's decision was therefore not arbitrary.
After multiple public hearings and consultation with other local and state agencies, the county board concluded that granting Kueker a CUP to operate a feedlot, subject to conditions, would not offend the stated policies of the zoning ordinance. The county board's grant of the CUP was reasonable and supported by the evidence.