This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-00-537

 

Rick Anderson, petitioner,

Appellant,

 

vs.

 

Winona County Board of Commissioners,

Respondent.

 

Filed December 5, 2000

Affirmed

Amundson, Judge

 

Winona County Board of Commissioners

 

James P. Ryan, Jr., Ryan & Grinde, Limited, 407-14th Street Northwest, P.O. Box 6667, Rochester, MN 55903 (for appellant)

 

David Wendorf, Wendland Timmerman Law Firm, 825 East Second Street, P.O. Box 247, Blue Earth, MN 56013 (for respondent)

 

            Considered and decided by Schumacher, Presiding Judge, Amundson, Judge, and Halbrooks, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

AMUNDSON, Judge

 

Relator challenges the decision by the county board of commissioners denying his application for a conditional use permit for a hog-finishing feedlot.  Relator contends the board's decision was arbitrary and capricious and not based on substantial evidence.  We affirm.

FACTS

 

Relator Rick Anderson applied for a conditional use permit (CUP) for the establishment of a new feedlot to house 2,000 finishing hogs (800 animal units).  The Winona County Planning Commission (the commission) held a public hearing on Anderson’s CUP application, and, at the conclusion of the hearing, a motion to table the application to allow for further investigation was passed unanimously.

            One month later, the commission again held a public hearing on Anderson’s CUP application.  At the conclusion of the hearing, the commission unanimously passed a motion to recommend to the board denial of Anderson’s application. 

            The Winona County Board of Commissioners (the board) reviewed the commission’s recommendation for denial and, after receiving additional information from Anderson regarding the commission’s recommendation, sent the petition back to the commission to reconsider the recommendation to deny the application.  

The commission then held a third public hearing and moved to recommend denial of Anderson’s CUP application.  In addition to its 15 stated reasons for denial, the commission also set forth a list of 31 conditions for the board to consider, should it choose to grant the CUP rather than follow the commission’s recommendation.

            The board voted unanimously to deny Anderson’s CUP application, adopting the 15 findings set forth by the commission in its recommendation of denial, and Anderson petitioned this court by writ of certiorari.

D E C I S I O N

            A municipal body’s decision to grant or deny a conditional use permit is a quasi-judicial decision, reviewable by writ of certiorari.  Neitzel v. County of Redwood, 521 N.W.2d 73, 75 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994).  The decision will be upheld unless it was unreasonable, arbitrary, or capricious.  Trisko v. City of Waite Park, 566 N.W.2d 349, 352 (Minn. App. 1997) (citation omitted), review denied (Minn. Sept. 25, 1997). Review is limited to the legal sufficiency and the factual basis for the reasons stated by the municipal body in denying a conditional use permit.  Id.  The appellate court limits review to the reasons stated for the denial, but only one of those reasons need satisfy the rational-basis test.  Id. (citations omitted).  An application for a conditional use permit may be denied only for reasons relating to the public health, safety, or welfare or to incompatibility with a comprehensive zoning plan.  SuperAmerica Group, Inc. v. City of Little Canada, 539 N.W.2d 264, 267 (Minn. App. 1995) (citing Hubbard Broadcasting, Inc. v. City of Afton, 323 N.W.2d 757, 763 (Minn. 1982)), review denied (Minn. Jan. 5, 1996). 

            The board set forth fifteen reasons for its decision not to grant Anderson’s request for a CUP.  The reasons stated by the board can be categorized into four groups: (1) water quality; (2) air quality; (3) road use; and (4) property values.

I.                   Water Quality

     The reasons stated by the board that express concern for the negative impacts of the proposed feedlot on water quality in the area are:

3.                  The comprehensive land use plan recommends restricting the use or prohibiting extensive feedlots in this karst area.

 

* * * *.

 

7.                  Too many known sinkholes in the region and the proposed nursery is surrounded in “High Probability” sinkhole area for significant risk factors.  The Amish community area is right near by and each year new sinkholes come forth and they are plowing and covering them where possible continually, plus their water and other area residents have a high nitrate now. 

 

* * * *.

 

15.       The close proximity of the proposed feedlot to the City of Utica and the concern for their wells.

 

Comprehensive land use plan

            Conformity with the county’s comprehensive land use plan is a factor the board may consider in deciding whether to grant the CUP, especially when the zoning ordinance specifically provides that the comprehensive plan should be considered in deciding whether to grant a conditional use permit.  Compare Hubbard Broadcasting v. City of Afton, 323 N.W.2d at 763 (incompatibility between the proposed use and the municipality’s comprehensive zoning plan is a legally sufficient reason for denial of a special use permit) with Amoco Oil Co. v. City of Minneapolis, 395 N.W.2d 115, 117-118 (Minn. App. 1986) (where ordinance does not list the comprehensive zoning plan as one of the relevant factors in determining whether to grant a conditional use permit and zoning plan does permit a limited version of the proposed use, incompatibility with the comprehensive zoning plan is not a legally sufficient basis for denying the conditional use permit).  Here, the ordinance states the board may consider whether the “use is in conformance with the Comprehensive Plan of the County” when deciding whether to grant a CUP.  Winona County, Minn., Zoning Ordinance § 505.1(6).  Accordingly, the board properly considered how this permit would conform to the county plan.

            Anderson argues that the board’s reliance on the comprehensive land use plan is an insufficient basis for denying him a CUP because the comprehensive land use plan contemplates regulation through conditions, not prohibition.  Anderson cites that portion of the plan that addresses St. Charles Township, which states,

[t]he areas east of the City of St. Charles contains Karst geography and sinkholes and both urban development and intense agriculture will be strictly regulated through performance standards to minimize future pollution problems.

 

Comprehensive Plan VIII.B.8 (emphasis added).  Thus, Anderson argues that the plan contemplates regulation, not prohibition.  But Anderson admits in his brief that the proposed feedlot is located in the Agricultural/Natural Resources District in addition to being part of St. Charles Township.  The portion of the plan providing direction for these areas contemplates that the county may prohibit entirely the establishment of feedlots in these areas.  The plan states, in pertinent part:

The geology in some portions of the agricultural protection area consists of Karst geology, characterized by sandstone and many sinkholes, which makes the ground water very susceptible to pollution.  Thus, intense agricultural uses such as feedlots or solid waste disposal sites should be carefully regulated or prohibited entirely in these areas.

 

Comprehensive Plan VIII.B.1 (emphasis added).  Therefore, we conclude that the third reason stated by the board, that is that denial of a CUP permit for a feedlot in this area is contemplated and recommended by the county land use plan is legally sufficient.

Concern for area wells

            Anderson argues that the remaining water quality concerns are unsupported by the record.  The board stated that it was concerned for the wells in the City of Utica because of the proposed feedlot’s close proximity to the city.  Anderson contends that this reason is arbitrary because the proposed feedlot is 1.5-1.75 miles from Utica and is outside the Utica wellhead protection area.  The board reviewed written expert opinions and heard expert testimony on the risk of water contamination from the feedlot.   This court does not conduct an independent review of the evidence to determine which expert is more credible.  Instead, this court’s review is limited to whether there is sufficient evidence in the record to support the reasons cited by the board.    Trisko, 566 N.W.2d at 352.  There was extensive evidence, both general and specific, to support the board’s conclusion that the proposed feedlot could contaminate area water supplies, especially given the geography of the area which made it significantly more prone to pollution from the feedlot.  Accordingly, we conclude that the water quality concerns raised by the board satisfy the rational-basis test.

II.                Air Quality

            The board also listed several reasons for its denial that are grounded in its concern for the negative impact the proposed feedlot would have on air quality.  These reasons are:

8.                  The water and air quality as well as health concerns and problems of the many area people certainly cannot be dismissed.  They are genuine legitimate concerns.  The area is zoned agricultural and natural resource.

9.                  The proposed location would impact the health and safety of the three established Amish businesses as well as the tourism of section Winona County. 

10.             There have been no bonding or any guarantees even offered by Rick or Holden Farms in case of very possible sinkhole developments for groundwater contamination or air contamination or even more importantly abandonment of the facility which is occurring in large numbers throughout the United States at the expense of millions of dollars to various counties in North Carolina and Iowa to name just a couple of states.  Even the biofilter system being considered for the proposed site is a very new technology, only about 3 year old and still in the research development experimental stages by the University of Minnesota as far as guarantees of effectiveness.

11.             Proposed site of Holden Farms would definitely impact Winona County established businesses, the Osborn Medical Business, Burt Poultry Processing, and the Golden Horn Restaurant and their local and regional clientele.

 

Anderson contends that reasons 8, 9, and 11 are simply insufficient conclusory statements, rather than factual findings supported by the evidence.  It is true that to facilitate judicial review, a zoning body must "have the reasons for its decision reduced to writing and in more than just a conclusory fashion."   Honn v. City of Coon Rapids, 313 N.W.2d 409, 416 (Minn. 1981).  Findings of municipal bodies have been held to be sufficient when examined in the context of the “cumulative effect” of the testimony and discussion in the record.  Earthburners, Inc. v. County of Carlton, 513 N.W.2d 460, 463 (Minn. 1994).

     Here there is specific evidence in the record to support the board’s concern for the public health due to potential detrimental impact on air quality from the proposed feedlot.  The board heard testimony from Ann Pierce who lives one-half mile east of the proposed facility.  Pierce testified that her husband’s asthma is triggered by the odor of pigs and their manure and that the planting of trees in between the two properties will not properly address this problem because it would take a number of years for the proposed spruce trees to reach a height that would effectively block the smell from passing from the facility to the Pierce property.  The board also heard from Kieffer, who can see the site of the proposed facility from his back yard, and testified that his son’s severe allergies will be negatively affected by the establishment of the feedlot.  Kieffer presented a copy of a letter from his son’s physician stating that the erection of the proposed facility would not be in the best interests of his son’s health.

     The board may consider neighborhood opposition to zoning requests.  Swanson v. City of Bloomington, 421 N.W.2d 307, 313 (Minn. 1988); SuperAmerica, 539 N.W.2d at 267.  But, by itself, generalized or unsupported neighborhood opposition 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).  Moreover, while it is well established that municipalities may deny conditional use permits for reasons relating to public health, safety and general welfare, vague concerns are generally insufficient grounds for the denial of a CUP request.  See Trisko, 566 N.W.2d at 353 (“A municipality may not base the denial of a [CUP] on land use standards that are ‘unreasonably vague’ or ‘unreasonably subjective.’”) (citation omitted).

            The health concerns from Anderson’s neighbors are neither vague nor generalized.  Although Anderson argues that these concerns cannot substantiate the board’s decision because the biofilter technology he proposes to use at the facility would all but eliminate the odor, this opinion is not uncontroverted.  The board also heard testimony from Mark Gernes, the Winona County feedlot officer, stating that biofilter technology is still in an experimental state and that the alleged results it would achieve are largely speculative.

Finally, Anderson argues that because the proposed feedlot meets the setback requirements of the ordinance, the board’s decision to deny his CUP must be arbitrary.  Winona County, Minn., Zoning Ordinance § 719.3 sets forth several setback and location standards for livestock feedlots, which include, in pertinent part:

(1)          Feedlots shall not be located within one thousand (1,000) feet of any residential dwelling, except for the dwelling of the feedlot owner or feedlot operator.

 

(2)          Feedlots shall not be located within ½ mile of any incorporated city limit, school, church, platted subdivision and/or public park.

 

 

Winona County, Minn., Zoning Ordinance § 719.3.  But mere compliance with the setback requirements and proposals to use unproven technology do not address the board’s specific public health concerns as they relate to the proposed feedlot’s impact on the quality of the air in the area. 

            We conclude that there is ample evidence in the record to support the board’s findings that the proposed feedlot presents legitimate public health concerns.   Therefore, we do not address the legal sufficiency of the board’s concerns regarding road use and property values.   Because the board may deny a CUP application based on concerns for the impact the proposed use would have on the health of the public, we affirm the board’s decision.

            Affirmed.