This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (2000).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-01-1570

 

 

B&B Aggregates, petitioner,

Appellant,

 

vs.

 

Lake County, Minnesota and its Planning Commission,

Respondents.

 

Filed March 26, 2002

Affirmed

Robert H. Schumacher, Judge

 

Lake County District Court

File No. C30138

 

 

Jack Y. Perry, Julie H. Firestone, Briggs and Morgan, P.A., 2400 IDS Center, Minneapolis, MN 55402 (for appellant)

 

Michael J. Ford, Quinlivan & Hughes, P.A., Post Office Box 1008, St. Cloud, MN 56302 (for respondents)

 

 

Considered and decided by Schumacher, Presiding Judge, Willis, Judge, and Poritsky, Judge*.


U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant B&B Aggregates challenges the district court's grant of summary judgment in favor of respondents Lake County, Minnesota and its Planning Commission on B&B's petition for writ of mandamus. B&B argues that the exclusion for blasting and quarrying contained in the conditional-use permit granted by the planning commission was barred as untimely under Minn. Stat.  15.99 (2000), and was otherwise arbitrary and capricious. We affirm.

FACTS

On July 2, 2000, B&B applied to the county and its planning commission for a conditional-use permit for a commercial gravel operation. The planning commission heard the matter on July 17, 2000, and granted the conditional-use permit subject to certain conditions.

Approximately five months later, the planning commission published the conditional-use order, finding that B&B's conditional-use permit request "[was] for gravel mining and screening with no crushing or washing operations." The planning commission stated that it granted B&B's conditional-use permit application but that the permit allowed only gravel mining and screening.

B&B then filed a writ of mandamus asking the district court to compel the planning commission to approve B&B's permit request, which B&B argued inherently included a request for crushing. B&B also submitted to the planning commission a separate crushing application.

In April 2001, after a hearing, the planning commission issued an amended order granting B&B's request for a crushing permit with limitations. According to the planning commission's findings, "[b]lasting or quarrying are not processes involved in a 'commercial gravel operation' in Lake County." The hearing minutes also state that

gravel extraction and crushing have been requested and approved by the county, but blasting of rock or quarrying of bedrock has neither been requested nor is it approved or allowed.

 

B&B then amended its petition for writ of mandamus to compel the planning commission to include blasting and quarrying, arguing that blasting and quarrying are inherent to a commercial gravel operation. Approximately two weeks later, the district court heard the parties' cross-motions for summary judgment. In July 2001, the court denied B&B's request for mandamus relief, granting summary judgment in favor of the county and its planning commission. The district court stated that it did not need to address the issue of whether a commercial gravel operation necessarily includes crushing as that point was made moot by the planning commission's grant of B&B's request for a separate crushing permit.

The district court did, however, address B&B's argument that because B&B's original conditional-use permit request inherently included a request for crushing, the planning commission's consideration of B&B's crushing request approximately ten months later violated Minn. Stat. 15.99 (2000), which requires that a zoning permit be granted or denied within 60 days of the original application. The court explained that, in April 2001, the planning commission was merely reconsidering the decision it made in July 2000 regarding B&B's permit. The district court reasoned that because B&B had taken the position in a separate case involving the present permit that the county's ordinance allowed it to reconsider its zoning-related decisions, B&B was now estopped from arguing to the contrary.

As to B&B's argument that the "commercial gravel operation" permit granted in July 2000 included quarrying and blasting, the district court noted that B&B failed to present any evidence that a "commercial gravel operation" necessarily includes blasting or quarrying of bedrock or bedrock material. It also noted that the evidence indicated that the planning commission assumed quarrying involves the removal of bedrock and stated:

The removal of bedrock, whether by blasting or by other means, is both practically and legally different from the removal of materials above the bedrock, including gravel. While the removal of the materials covering the gravel is reasonably implied in a "commercial gravel operation", the removal of what's under the gravel is not.

 

Finally, the district court observed that, because quarrying and blasting were not part of B&B's original conditional-use permit or the amended order, the question of whether quarrying and blasting should be allowed at the site was not before it. The district court concluded that if B&B wanted a blasting and quarrying permit, it should apply to the county for one. B&B appeals.


D E C I S I O N

On appeal, B&B argues that the district court erred by granting the county's cross-motion for summary judgment because the county's exclusion of blasting and quarrying is (1) time-barred under Minn. Stat. 15.99 (2000), and (2) arbitrary and capricious.

Summary judgment is appropriate when there is no genuine issue of material fact and one party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03; Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). On appeal from summary judgment, an appellate court asks whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990) (citation omitted). "[T]he reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted." Fabio, 504 N.W.2d at 761 (citation omitted).

B&B's arguments presuppose that the July 2000 conditional-use permit included permission for quarrying and blasting. But B&B did not mention blasting or quarrying in its application. When the planning commission asked B&B whether it intended to conduct quarrying and blasting at the site, B&B responded that it did not. Furthermore, the county's land-use ordinance provides that an applicant who desires to extract gravel must include in its application a

[d]escription of all phases of the contemplated operation including types of machinery and equipment which will or might be necessary to carry on the operation.

 

B&B, however, did not mention any special equipment related to quarrying and blasting in its application. As a result, the planning commission had nothing from which it could infer B&B's intent to include blasting and quarrying. See NBZ Enters., Inc. v. City of Shakopee, 489 N.W.2d 531, 534 (Minn. App. 1992) (stating that permit-granting body could not infer applicant's intent to operate concrete plant as part of its gravel-processing operation absent clear expression of that intent), review denied (Minn. Sept. 30, 1992).

B&B, however, argues that, because quarrying and blasting are inherently included in a mining operation, it is not necessary to specifically mention those aspects of mining. Thus, the threshold question presented is whether, under the county's ordinance, blasting and quarrying are necessary elements of a "commercial gravel operation" that includes gravel mining.

First, B&B notes that in 1998 the county granted permission to quarry and blast to Duluth Redi-Mix, which had a mining operation in the county before the county enacted its land use ordinance. B&B argues that the county could have lawfully allowed Duluth Redi-Mix permission to blast and quarry only if blasting and quarrying were "included within or an accessory use" to Duluth Redi-Mix's pre-existing mining operation. For support, B&B cites Oswalt v. County of Ramsey, 371 N.W.2d 241, 246 (Minn. App. 1985), review denied (Minn. Sept. 26, 1985), in which this court stated that "[o]rdinances need not allow [pre-existing] nonconforming uses to expand or enlarge" beyond the uses existing at the time of the enactment of the ordinances that prohibit the use.

B&B's reliance is misplaced. Nothing in the record before us indicates whether Duluth Redi-Mix's mining operation was non-conforming at the time it requested permission to blast and quarry. In addition, the language from Oswalt on which B&B relies is permissive, and therefore, even if Redi-Mix's mining operation was non-conforming, the county could allow non-accessory uses.

B&B also cites California and Missouri case law in support of its proposition. Its reliance on these cases, however, is also misplaced. The first case is based on an interpretation of the state's sales-tax exemption, which is not applicable here. State ex rel. Union Elec. Co. v. Goldberg, 578 S.W.2d 921, 924 (Mo. 1979) (holding that taxpayer who engaged in mining iron ore by drilling and blasting was engaged in "mining" for purposes of the state's sales tax exemption of electrical energy). The second case indicates only that mining may include blasting and quarrying. Hansen Bros. Enters. v. Bd. of Supervisors, 907 P.2d 1324, 1330 n.7, 1344-45 (Cal. 1996) (stating that mining is an "all-encompassing term," but distinguishing between quarrying of hard rock and removal of sand and gravel). And the third case, contrary to the proposition for which B&B cites it, actually supports the district court's determination that mining does not necessarily include blasting and quarrying. See Ingle v. City of Fulton, 268 S.W.2d 600, 604 (Mo. Ct. App. 1954) (noting that, while mining is a broad term, "not every mining operation necessitates extensive explosives, if any").

B&B also relies on its expert's opinion that mining includes blasting and quarrying and that B&B's operation is ineffective without them. But the district court, acting on its conclusion that as a matter of law blasting and quarrying are not necessary elements of a mining operation, determined that if B&B's mining operation requires blasting and quarrying, it must specifically apply for such a permit. We agree.

B&B did not seek permission for blasting and quarrying, and the planning commission did not address blasting and quarrying in the conditional-use permit it granted in July 2000. As a result, the planning commission's statement in its April 2001 order that blasting and quarrying are excluded does not constitute a denial of a request. Therefore, this court need not reach B&B's arguments that the county's exclusion is time-barred under Minn. Stat. 15.99, and arbitrary and capricious.

No genuine issues of material fact exist, and the district court did not err in its application of the law.

Affirmed.



* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, 10.