This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
IN COURT OF APPEALS
Carlson, et al.,
Blue Earth County Board of Commissioners,
Blue Earth County Board
Richard F. Prim, Gislason & Hunter LLP, 2700 South Broadway, P.O. Box 458, New Ulm MN 56073-0456 (for relators)
David Wendorf, Arvid Wendland, Wendland Timmerman, 825 East Second Street, Blue Earth, MN 56013 (for respondent)
Considered and decided by Stoneburner, Presiding Judge, Crippen, Judge, and Anderson, Judge.
On appeal by writ of certiorari, relators dispute the rationality of the grounds stated by the county board in denying their request for a conditional-use permit to construct two hog barns. Because the record does not show that public health concerns of the board are arbitrary or irrational, we affirm.
In April 1999, proposing to construct two total-confinement hog barns in the county, relators applied for a conditional-use permit with the Blue Earth County Environmental Services Office. Following the county board’s initial denial of the permit application in early June, relators resubmitted their application later that summer. The county board again rejected the permit application on September 21 and issued a resolution setting forth reasons for denying the permit. In particular, the county found the proposed facility, when added to the air emissions of existing facilities in the area, had the potential for an adverse health impact on adjacent landowners.
The county-board resolution noted that neighbors complained of respiratory problems attributed to existing feedlots and that at least one neighboring family claimed they would be unable to live on and operate their farm if additional animal units increased the air contamination. The county specifically referenced a section of the local ordinance directing that no permit issue unless the use will not be injurious to the use and enjoyment of other property in the immediate vicinity. The resolution noted additional reasons for denying the permit, including applicants had alternative locations to construct the feedlot operation, the board had previously denied the same application, and reports that applicant had publicly stated he would not comply with conditions placed on him by the township.
During the five months between relators’ initial application and the county board’s vote denying the permit for the second time, at least seven public hearings were held before the Blue Earth County Board, the Blue Earth County Planning Commission, and the Shelby Township Board. At each of the meetings, the boards and the Commission allowed for extensive public comment and the submission of petitions and letters. Neighbors spoke on both sides of the issue. Opponents expressed concern over the potential negative health consequences, including two neighbors who reported existing respiratory problems attributed to the large number of existing hog feedlots. The board heard numerous personal experiences where odor from existing feedlots interfered with neighbors’ use and enjoyment of their land.
Other opposition concerns included the potential for air and water pollution, the impact on the local water supply, manure management, the traffic load on county roads, the negative impact on property values, and the potential for clean-up costs should the property be abandoned. Proponents discounted the health and pollution risks, noted relators’ compliance with the technical requirements of the ordinance, and expressed concern lest a permit be denied based on the cumulative effect of hog feedlots in an area where no county ordinance limits area density.
At the initial township board meeting in April, the board did not take a formal vote on the permit application, but the town clerk prepared a letter for the county-planning commission that summarized the neighbors’ reservations and asked that the planning commission not approve the permit. The Blue Earth County staff reviewed relators’ proposal and recommended approval based on its conclusion that relators met the applicable existing standards required for a permit for a hog feedlot, including setback distances and density limitations, and that the proposal was consistent with the county land-use plan for the area. On a motion to approve the permit, the planning commission deadlocked on a 3-3 vote.
The county board held two public meetings to consider the issue before deciding to deny the permit. In addition to testimony from neighbors, the board considered two expert studies, submitted by one of the opponents, that stated possible adverse health risks of high-density hog feedlots. One study, a dispersion-modeling analysis of air emissions from selected Minnesota feedlots, conducted by the Minnesota Pollution Control Agency, concluded that concentrations of hydrogen sulfide and ammonia gas exceeded state standards. The other study, conducted by researchers at the University of North Carolina School of Public Health, found that residents living in proximity to large feedlots experience increased health problems due to airborne emissions from intensive swine operations, including mucous membrane irritation, respiratory and gastrointestinal problems.
Following the county-board denial, relators elected to seek review by the township board rather than appeal the decision of the county board and they formally submitted a new permit application on August 9. This time the township board voted to approve the application, subject to certain conditions, based on relators’ apparent compliance with the requirements of the ordinance, but continued to express concern about the “alarming questions” raised by neighboring property owners. The planning commission then met and voted to approve the permit after expressing a concern that denial of the permit would be vulnerable to legal challenge because the application met the technical requirements of the ordinance. The county board rejected the planning commission’s recommendation, declined to support a motion to approve the permit, and issued a resolution setting forth the reasons for its rejection of the permit. It is this decision by the county board that relators challenge in this appeal.
A county board’s denial of a conditional-use permit is reviewed by writ of certiorari to the court of appeals. Molnar v. County of Carver Bd. of Comm’rs, 568 N.W.2d 177, 180 (Minn. App. 1987). The standard for review for governmental zoning decisions is whether they were unreasonable, arbitrary or capricious. Carl Bolander & Sons Co. v. City of Minneapolis, 502 N.W.2d 203, 207 (Minn. 1993). A reviewing court applies the same standards to a certiorari zoning appeal from county boards as are employed in a zoning appeal from district court. See Molnar, 568 N.W.2d at 181.
Land-use decisions are entitled to great deference and will be disturbed on appeal only where the county’s decision has no rational basis. Swanson v. City of Bloomington, 421 N.W.2d 307, 311 (Minn. 1988); Zylka v. City of Crystal, 283 Minn. 192, 196, 167 N.W.2d 45, 49 (1969) (noting broad discretionary power of governmental body to deny CUP application). The permit applicant has the burden to persuade the appellate court that the reasons for denial either are legally insufficient or are not supported by the record. Hubbard Broadcasting, Inc. v. City of Afton, 323 N.W.2d 757, 763 (Minn. 1982).
A denial of a conditional-use permit is a quasi-judicial decision, requiring both a factual determination about the proposed use and an exercise in discretion in determining whether to permit the use. Shetka v. Aitkin County, 541 N.W.2d 349, 352 (Minn. App. 1995), review denied (Minn. Feb. 27, 1996). A reviewing court considers whether a quasi-judicial decision was “arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it.” Molnar, 568 N.W.2d at 181 (quotation omitted).
An application for a permit may be denied for reasons affecting public health, safety, or welfare, or for incompatibility with a land-use plan. Hubbard, 323 N.W.2d at 763; SuperAmerica Group, Inc. v. City of Little Canada, 539 N.W.2d 264, 267 (Minn. App. 1995), review denied (Minn. Jan. 5, 1996). Denial of a land-use request is not arbitrary where at least one of the stated reasons satisfies the rational-basis test. Trisko v. City of Waite Park, 566 N.W.2d 349, 352 (Minn. App. 1997), review denied (Minn. Sept. 25, 1997). Effective review of a permit decision requires both a clearly articulated reason and a specific reference to a local ordinance. Earthburners, Inc. v. County of Carlton, 513 N.W.2d 460, 463 (Minn. 1994).
Relators assert that we should reverse the county board decision because all of the reasons the board gave for the decision are legally insufficient or without a factual basis, and because the county board ignored its own expert staff recommendation and relied solely on unsubstantiated neighborhood opposition. To the contrary, we conclude that the county board’s public health rationale, the most prominent part of the stated basis for its decision, meets the rational-basis test, and this court will not disturb such a land-use decision on appeal.
The county board rejected the permit application partly because of community health concerns. The first reason given by the county board in its resolution denying the permit was the possible health impact of the cumulative effects of air emissions from the proposed feedlot on the community, as raised in the neighbors’ testimony about medical conditions and expert studies. The resolution specifically referred to the neighbors’ reports of respiratory problems attributed to existing feedlots and expectations of future deterioration in air quality should additional feedlots be constructed in the immediate area. Two of the three board members who voted against the permit stated that their rejection was based partly on health concerns and opposition from the neighbors as expressed to the township board. The third member voting against the permit did not comment on the reason for his decision. It should also be noted that in the board’s first denial of the permit, two of the three members voting with the majority specifically noted their desire to be responsive to the concerns expressed by the township—concerns that included the health impact on those with respiratory problems.
Nor is the majority position outside the scope of its authority for action under the county ordinance governing the issuance of a permit. The county ordinance includes a requirement that no permit shall issue unless conditions are established to protect “the public’s health, safety, morals, and general welfare.” Blue Earth County Ordinance § 0100.1807, subp. 1(O). Such a provision provides the board with the authority to consider not only the technical requirements of proper setback distances and site-density limitations, but also the public-health impact of a permit application. The resolution also referenced another portion of the ordinance providing that a conditional-use permit “not be injurious to the use and enjoyment of other property.” Blue Earth County Ordinance § 0100.1807, subp. 1(J). This rationale is also supported by the record and provides a proper basis for judicial review. See Earthburners, 513 N.W.2d at 463.
Relators counter that the public-welfare rationale constitutes mere “neighborhood opposition,” a legally insufficient basis for denial, citing several cases, including Swanson, 421 N.W.2d at 313.
A governmental entity may consider neighborhood opposition to zoning issues. Swanson, 421 N.W.2d at 313; SuperAmerica, 539 N.W.2d at 267. But generalized neighborhood opposition, by itself, does not provide a legally sufficient reason for denial. Chanhassen, 342 N.W.2d at 340 (concluding denial of permit must be based on something more concrete than “non-specific” neighborhood opposition). Although the decision-maker “may not reject expert testimony without adequate supporting reasons, those reasons need not be based on expert testimony.” SuperAmerica, 539 N.W.2d at 267.
We conclude that the cases cited by relators do not govern the facts of this case, and that opponents’ testimony and expert studies provide a rational basis to support the board’s decision: they are more than a mere speculation on the future consequences of a project. We find the argument in SuperAmerica more pertinent to this case. In SuperAmerica, the court concluded that testimony by neighbors about their observations of existing daily traffic congestion was sufficiently concrete to justify the city’s disregard of an expert witness who testified that increased traffic would be minimal. Id. at 268.
In this case, both neighbors and board members related personal experiences with significant odor problems arising from existing feedlots that interfered with the use and enjoyment of their property. One neighbor testified that on some days she had to keep her children from playing outside. The chairman of the Shelby town board told the county board he sometimes is forced to close all the windows in his house on days when the odor is overpowering. A neighboring farmer wrote a letter to the board opposing the permit, stating that his wife suffers respiratory problems due to existing hog-barn dust. And a neighboring landowner, who presently resides in Hutchinson, opposed the permit because three family members are asthmatic and already experience significant respiratory problems when they come to the area to work the farm. The neighbors’ observations concerning their personal experiences with the existing air quality is similar to the objections voiced by neighbors in SuperAmerica regarding current conditions capable of being observed by average citizens.
Also, the record does not include any expert opinion that refutes neighbor concern about the possible health impact of additional hog-confinement barns. Cf. Trisko, 566 N.W.2d at 356 (noting scientific expert testimony established that level of silicosis dust would be safe, in contrast to neighbors’ unsubstantiated health concerns). The only experts recommending approval of the permit were with the county staff, and their recommendations were based on relators’ satisfaction of the technical requirements of the ordinance.
The neighbors’ testimony and letters about adverse health effects were supplemented by two significant and recent scientific studies that reported possible health risks arising from high-density hog feedlots and raised questions about the cumulative effect of numerous such operations within a given area. The existence of several other large hog feedlots in the section of the county where the permit was proposed, the personal observations of multiple neighbors with problems associated with the existing feedlots, and the expert studies suggesting possible health risks from high concentrations of feedlots rationally support an inference that an additional feedlot would contribute to a deterioration in air quality that could pose additional health risks and interfere with the use and enjoyment of the land by others.
Because we find that the public-health rationale of the board is adequate, we do not examine the board’s other bases for denying relator’s proposed permit. “‘Not all reasons’ for the denial of a conditional use permit ‘need be legally sufficient and supported by facts in the record.’” Trisko, 566 N.W.2d at 352 (quoting Hubbard, 323 N.W.2d at 765 n.4.) A denial of a conditional-use permit application “is not arbitrary when at least one of the reasons given for the denial satisfies the rational basis test.” Id. (citation omitted). The health rationale was first stated in the board resolution and was a major part of the rationale indicated in comments of the board majority. Furthermore, public health concerns were a primary focus of testimony and discussion in public proceedings on the case.
We further decline to consider relators’ argument, raised for the first time at oral argument, that a recent decision of this court, Demolition Landfill Servs. v. City of Duluth, 609 N.W.2d 278 (Minn. App. 2000), dictates a reversal based on a violation of Minn. Stat. § 15.99 (1998). Subdivision two of Minn. Stat. § 15.99 directs that a political subdivision must approve or deny properly submitted zoning requests within 60 days, and that failure to act constitutes approval of the request. Id.; Demolition Landfill Servs., 609 N.W.2d at 281-82. Relators argue that the county board rejected a motion to approve the permit in this case, and that rejection of a motion does not constitute a vote to approve or a vote to deny, as required by the statute.
This issue is not properly before this court. In Demolition, the appellant challenged the trial-court order that denied its motion for summary judgment and dismissed its petition for a writ of mandamus to compel the city of Duluth to issue a special-use permit, arguing that the city failed to timely comply with section 15.99, subd. 2. Demolition Landfill Servs., 609 N.W.2d at 279. Here, relators did not challenge the action of the county board by filing a writ of mandamus in district court as a violation of section 15.99, subd. 2. Instead, relators treated the action by the county board as a denial, as did all other parties, and brought this appeal challenging the reasons for the denial.
Relators’ brief repeatedly and consistently refers to the vote of the county board as a denial of their conditional-use application. In addition, relators’ actions following the board vote are consistent with an understanding that the vote was a denial: they sought board reconsideration of a denial based on new assurances that they would take additional measures to minimize problems with odors by installing biofilters.
Relators must fail in their attempt, using a recent decision of this court, to bootstrap a claim of a possible section 15.99 violation onto their present appeal. Had relators believed that the rejection by the board of a motion to approve the permit did not constitute a denial as required by section 15.99, their action lay in filing a writ of mandamus in district court, in circumstances in which their present appeal would be rejected as premature. See Minn. R. Civ. App. P. 103.03 (listing appealable orders and judgments); Weinzierl v. Lien, 296 Minn. 539, 540, 209 N.W.2d 424 (1973) (stating that generally, only a decision that finally determines the rights of the parties and concludes the action is appealable). Taking account for relators’ actions in bringing this appeal, premised on the representation and belief that a final denial order had occurred, they have forfeited the right to raise a possible section 15.99 violation in this appeal. Thus, we are left with no reason to reexamine the finality of the board’s action in the context of this appeal.
Finally, respondents’ motion to strike portions of relators’ brief and appendix is granted. We are not persuaded by relators’ argument seeking to present evidence that was submitted after we reviewed its case. See Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff’d, 504 N.W.2d 758 (Minn. 1993) (noting the general rule that a reviewing court will strike documents included in a party’s brief that are not part of the appellate record).