STATE OF MINNESOTA
IN COURT OF APPEALS
Jeff Bartheld, et al.,
Filed July 11, 2006
Reversed and remanded
James A. Bumgardner, Black, Moore, Bumgardner &
Stephen G. Andersen, Isaac Kaufman, Ratwik, Roszak &
Maloney, P.A., 300
Considered and decided by Stoneburner, Presiding Judge; Dietzen, Judge; and Harten, Judge.*
S Y L L A B U S
1. A temporary interim zoning ordinance not adopted in accordance with Minn. Stat. § 394.34 (2004), is invalid and does not provide a legally sufficient reason for denying an application for a conditional-use permit.
2. Neighborhood opposition based on generalized concerns not factually supported by the record is not a legally sufficient reason for the denial of a conditional-use-permit application.
O P I N I O N
Jeff and Dana Bartheld challenge respondent
Jeff and Dana Bartheld
own a residence located on Rainy Lake in
conditional-use permit (CUP) to operate the B&B as a home occupation. In their application, relators asserted that they met all the requirements under the county’s CUP ordinance to gain approval for the project.
On July 14, the Koochiching County Planning and Zoning Commission (zoning commission) held a hearing regarding relators’ CUP application. Relators’ neighbors expressed a number of concerns about the proposal, including concerns over parking, traffic, noise, and declining property values. The zoning commission delayed making a recommendation and scheduled a second hearing on the matter.
Before the second hearing, eight neighbors signed a petition opposing relators’ application on the grounds that the proposal would (1) increase noise, traffic, and parking in the area; (2) require additional dock space along the lake; (3) possibly block their views of the lake; (4) possibly impact the adequacy of the neighborhood sewer system; (5) decrease the value of their properties; (6) introduce strangers into the neighborhood; and (7) be like having a hotel in the area.
In response to the neighbors’ concerns, relators sent a letter to the zoning commission agreeing to amend their application by reducing the occupancy from five to two units, imposing a “quiet time” from 10:30 p.m. until 6:00 a.m., not offering liquor, restricting customer parking to relators’ property, and requiring its customers to use the Rainy Lake Marina to dock their boats.
On August 11, the zoning commission held a second hearing. Following this hearing, the zoning commission concluded that relators met all the requirements for approval under the county’s CUP ordinance and recommended approval of relators’ application for a two-unit B&B for a period of five years subject to the revised conditions set forth by relators.
August 17, the county’s Environmental Services Director submitted a request to
On August 23, the county board held a hearing on relators’ application. Board members stated that they had received many phone calls on the issue from neighbors opposing the B&B and were advised of the possibility of another neighborhood petition with 60 signatures.
During public comment, neighbors expressed concerns that the B&B proposal would result in increased noise and traffic congestion and that the proposal was not compatible with the neighborhood. One neighbor “fear[ed] the bed and breakfast w[ould] create more noise due to entertainment of guest[s] and also w[ould] add more traffic to an already congested area.” Another neighbor expressed concerns that the proposed operation was in “an already congested neighborhood” and was not a “good fit.” One neighbor opined that the road would need to be improved before any businesses were added to the area and recommended that the county establish guidelines for the operation of B&Bs in the area so that there are guidelines to consider the location of these businesses.
After public comment, the county board approved a motion to deny the recommendation of the zoning commission to grant the CUP to relators and “plac[ed] a moratorium on all Bed and Breakfast lodging applications until guidelines are established for operation of these businesses in the [c]ounty.” The reasons stated for the CUP denial were that “the request [was] hard to support when the vast majority of the property owners in the neighborhood are opposing it” and the board desired to “come up with further guidelines for establishing B&Bs in the County to ensure they are acting in a uniform manner.” The board did not issue or publish a temporary interim zoning ordinance. Relators appealed by writ of certiorari.
I. Did the county adopt a temporary interim zoning ordinance in accordance with Minn. Stat. § 394.34 (2004)?
II. Was the denial of relators’ CUP application to operate a B&B in their residence arbitrary and capricious?
The county contends that it properly adopted a temporary interim zoning ordinance (interim zoning ordinance) on all applications for B&Bs, which constitutes a legally sufficient basis to deny relators’ CUP application. Relators argue that the interim zoning ordinance was not adopted in accordance with the statute, and is, therefore, invalid.
Under Minn. Stat. § 394.34
(2004), a county has the authority to adopt an interim zoning ordinance to conduct
studies and hearings for the purpose of considering, inter alia, the amendment,
extension, or addition to its comprehensive plan or official controls within
the county. The purpose of the statute
is to provide the county with the opportunity to study its comprehensive plan
and official controls so that it can, in a meaningful way, consider potential
amendments to its zoning maps or ordinances.
An interim zoning ordinance adopted in accordance with the statute is a
legislative act. See Interstate Power Co., Inc. v.
“As a legislative act, a zoning or rezoning classification must be upheld unless
opponents prove that the classification is unsupported by any rational basis related to promoting the public health, safety, morals, or
general welfare.” Honn v. City of
Relator argues that the county did not comply with the requirements of the statute, which provides:
If a county is conducting, or in good faith intends to conduct studies within a reasonable time, or has held or is holding a hearing for the purpose of considering a comprehensive plan or official controls or an amendment, extension, or addition to either, . . . the board in order to protect the public health, safety, and general welfare may adopt as an emergency measure a temporary interim zoning map or temporary interim zoning ordinance, the purpose of which shall be to classify and regulate uses and related matters as constitutes the emergency. Such interim resolution shall be limited to one year from the date it becomes effective and to one year to renewal thereafter.
Here, the minutes from the county board indicate that it approved a motion to “plac[e] a moratorium on all Bed and Breakfast lodging applications until guidelines are established for operation of these businesses in the [c]ounty.” Although the motion does not use the language of the statute, it is clear that the motion was to adopt an interim zoning ordinance that would halt all B&B proposals while the county conducted studies.
The county concedes that it (1) did not adopt a written interim zoning ordinance; (2) did not find that an emergency existed; (3) did not intend to conduct a study or hold a hearing; (4) did not limit the duration of the interim zoning ordinance to less than one year; and (5) did not follow the statutory procedures for enactment of an ordinance set forth in Minn. Stat. §§ 375.51, subd. 1, and 394.34. Based on the record before us, we conclude that the county board failed to comply with the requirements of Minn. Stat. § 394.34. Consequently, the interim zoning ordinance was invalid and did not provide a legally sufficient basis to deny relators’ application.
contend that they met all the ordinance requirements for a CUP and that the
county’s denial of its application was therefore arbitrary and capricious. Decisions of a county to
grant or deny a CUP are quasi-judicial in nature and reviewable by writ of
certiorari. Interstate Power Co. v.
“A county’s denial of a
conditional use permit is arbitrary where the applicant establishes that all of
the standards specified by the zoning ordinance as conditions of granting the
permit have been met.” Yang v.
the Koochiching County Zoning Ordinance (ordinance), permitted uses for
properties in districts that are zoned as “residential-recreation” include “[o]ne-family
and two-family seasonal and year round dwellings.”
(1) the conditional use will not be injurious to the use and enjoyment of the environment, or detrimental to the rightful use and enjoyment of other property in the immediate vicinity, or neighborhood, nor substantially diminish and impair property values within the surrounding neighborhood;
(2) The establishment of the conditional use will not impede the normal and orderly development and improvement of surrounding property for uses predominant in the area;
(3) The location and character of the proposed development are considered to be consistent with a desirable pattern of development for the locality in general;
(4) The proposed development and-or land use be consistent and in keeping with the spirit and intent of this ordinance; [and]
(5) Whenever it is deemed necessary and advisable, a limitation and-or renewal of the conditional use permit may be required.
In their application, relators presented evidence that they met all the requirements under the county ordinance. When the zoning commission recommended approval of the CUP, it concluded that relators met all the requirements of the ordinance and that their amendments to their original application satisfied the reasonable concerns of the neighbors. The county board denied relators’ application on the basis that (1) “the request [was] hard to support when the vast majority of property owners in the neighborhood are opposing it,” and (2) it was “coming up with guidelines for establishing B&Bs in the County to ensure they are acting in a uniform manner.”
Because the county did not
enact a valid interim zoning ordinance, the remaining basis articulated by the
county for denying relators’ CUP application was that a majority of the
neighbors opposed the project. But
neighborhood opposition alone is not a sufficient basis for denying a project. Amoco Oil Co. v.
City of Minneapolis, 395 N.W.2d 115,
118–19 (Minn. App. 1986) (concluding that “[t]he simple fact that
community members oppose a landowner using his land for a particular purpose is
not a legally sufficient reason for denying a special use
permit”) (quoting Barton Contracting Co., Inc. v. City of Afton, 268
N.W.2d 712, 718 (
Here, the county failed to
articulate any other reasons for denying the CUP application. And the county did not specify or refer to
its ordinance in denying the CUP application.
Without such findings, the county board’s denial is presumed arbitrary
and capricious, unless the county shows otherwise. See Crystal
Beach Bay Ass’n v. County of Koochiching, 309 Minn. 52, 55, 243 N.W.2d 40,
suggests that there is a factual basis in the record to support its denial of
the CUP and points to neighborhood concerns expressed at the hearing before the
county board regarding noise, traffic, and neighborhood compatibility. But the county failed to adopt findings
regarding noise, traffic, or compatibility.
it is not necessary to prepare formal findings of fact, a county board ‘must, at a minimum, have the reasons for its
decision recorded or reduced to writing and in more than just a conclusory
fashion.’” Picha v.
neighbors testified about their concerns regarding noise, traffic, and
compatibility. But that testimony was in
the nature of vague, generalized concerns, rather than in the nature of actual
facts or experience regarding the potential impact of the project on the
neighborhood. “A [county] may consider
neighborhood opposition only if based on concrete information.” Yang,
660 N.W.2d at 833; see also Chanhassen
Estates Residents Ass’n v. City of
The county argues that SuperAmerica Group, Inc. v. City of
Here, unlike SuperAmerica, the minutes of the county board meeting do not reflect any testimony regarding actual observations of traffic congestion or potential traffic impact. Cf. id. The record reveals no basis for the neighbors’ claim that traffic congestion is a problem that would increase if relators’ CUP application were granted.
Further, there is no evidence in the record of a potential noise impact of the proposal that would violate state law or the county ordinance. And there is no evidence of any potential conflict with the proposed use of relator’s home as a B&B with the other land-use activities in the neighborhood, particularly given that relators amended their application to limit nighttime activity.
Because the record does not support the county’s denial of the CUP application as amended by relator’s letter, we reverse the county’s decision and remand with directions that the county issue the permit. See Picha, 634 N.W.2d at 743 (reversing and remanding to the county to issue a CUP where it found denial of CUP was arbitrary and capricious); see also Barnum, 386 N.W.2d at 776 (concluding that remanding the case for findings would be unfair to appellants because of the risk that any findings made by the county board at this late date would merely rationalize their previous decision).
D E C I S I O N
county did not adopt a temporary interim zoning ordinance in accordance with
Reversed and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.