This opinion will be unpublished and

may not be cited except as provided by

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






Louis Reiter,





County of Olmsted,



Filed October 15, 2002


Gordon W. Shumaker, Judge


Olmsted County District Court

File No. CX012133





Kenneth R. Moen, 202 Riverside Building, 400 South Broadway, Rochester, MN 55904 (for appellant)


Thomas M. Canan, 200 Merchants’ Exchange Building, 18 Third Street Southwest, Rochester, MN 55902 (for respondent)


Considered and decided by Randall, Presiding Judge, Harten, Judge, and Shumaker, Judge.


U N P U B L I S H E D   O P I N I O N




Appellant landowner petitioned the County of Olmsted to amend the county’s land-use plan and to rezone his property so that he could develop 40 lots as a residential subdivision.  Appellant proposed to amend the county land-use plan to change 113.5 acres of his property from the current resource-protection designation to the suburban-development designation.  He also proposed to amend the zoning ordinance to change to a special district (SD) zone the 113.5-acre parcel of property currently designated in the land-use plan as agricultural protection district (A-2), plus an adjacent additional 30 acres currently designated as urban-service area.  After receiving input from the Oronoco Townboard, the Minnesota Pollution Control Agency (MPCA), the county environmental commission, the public works department, the county planning commission, and planning commission staff, the Olmsted County Board of Commissioners held a public hearing and subsequently voted to deny appellant’s requests to amend the land-use plan and to rezone the property.  The district court granted the county’s motion for summary judgment and denied appellant’s motion for summary judgment and mandamus.  Appellant challenges the county board’s decision denying the land-use-plan amendment and the rezoning request.  We affirm the county board’s decision.


Appellant’s property is located in Oronoco Township, west of 18th Avenue N.W., north of 85th Street N.W., and east of the former Oronoco landfill.  The 113.5-acre parcel of property proposed for the land-use-plan amendment is currently designated in the Olmsted County general land-use plan as a resource-protection area.  It must be redesignated as suburban development before it can be rezoned and developed as a residential area.  Currently, the land is zoned as agricultural protection district (A-2), which must be rezoned to a special district (SD) before it could be developed as a residential area with some permanent open space.   Immediately south of this parcel, appellant owns an additional 30 acres that is already within Rochester’s urban-service area, which means that it can receive city water and sewer.  Appellant also seeks to rezone this 30-acre parcel to SD, as it is currently zoned A-2. 

Appellant’s property was previously used as farmland, but is currently open grassland.  Forty acres on the site constitute an approved wetland bank under the state Wetland Conservation Act.  The property has at least two sinkholes, and additional sinkholes may also exist; this area of the county is rated as having a high probability for sinkholes and sinkhole development.  The southwest portion of the property contains a flood plain.  The property is adjacent to county roads; the department of transportation has stated that appellant’s residential-development proposal would be a large traffic generator.

The area to the north is zoned for agricultural and open-space uses, and it is a resource-protection area on the future land-use map.  The area to the south is currently agricultural and open space, but it is designated for urban service on the future land-use map.  The area to the east is predominantly suburban-residential in character.  The land to the west is the site of the closed Oronoco landfill, and it is currently designated as a resource-protection area.

In 1998, the county board decided that 1,500 acres should be added to the area already designated for suburban development in the land-use plan.  Any amendments from a resource-protection area to suburban development would be considered on a case-by-case basis, depending on the property’s Comprehensive Land Use Evaluation System (CLUES) model scores and the land-use-plan’s policy statements.  CLUES is a computer model used to objectively apply the land-use policies and to compare the land within the county to determine its suitability for resource-protection uses or suburban development.  New land-use maps can be produced with the model if there are subsequent changes in policy, land use, or public facilities. 

The county board also decided that 1998 CLUES model would determine the “next best 1500 acres” for suburban development.  Appellant and four other applicants petitioned to amend the land-use plan and to change 694 acres of land from resource protection to suburban development.  At that time, the county board approved the land-use-plan amendment only for those properties located on the east side of 18th Avenue N.W.  Thus, appellant’s 113.5-acre parcel remained designated as resource protection because it was located west of 18th Avenue N.W.

            Again in 2000, appellant sought to develop his property and proposed a land-use amendment and zoning change.  In October 2000, the Oronoco Townboard reviewed the rezoning request and did not approve it, citing concerns about the parcel’s proximity to the former landfill.  At the January 2001 county planning commission meeting, the townboard supervisor stated that the township could not in good conscience recommend that people build a home on property adjacent to a closed landfill and thought that the land should be used for something else. 

            In early November 2000, the MPCA informed the county planning department of several issues regarding the closed landfill.  First, although there is potential for landfill-gas migration along the east boundary of the landfill, there does not appear to be any off-site gas migration based on the MPCA’s monitoring.  Migration to the east of the current landfill boundary is unlikely due to the difference in elevation between the landfill and appellant’s property line.  Second, because the landfill is a known source of potential contamination, the MPCA would prefer that all lots be provided with city water.  Wells on the northeast corner of the landfill show contamination by vinyl chloride above established health-risk levels.  This contaminated aquifer is not useable for wells.  If there were to be any private wells, they should be double cased and dug into an existing, uncontaminated aquifer.  Finally, the MPCA is considering installing a gas-extraction system at the landfill, which would involve drilling gas-recovery wells, piping the wells to a blower, and installing a flare to incinerate the gas.  But a land-management plan for the closed landfill site would not be completed until the next year. 

            On November 3, 2000, staff for the planning commission drafted a report regarding appellant’s land-use-amendment request.  At that time, staff concluded that the area could be considered suitable for suburban development.  But staff also noted that the site did not score well under the 1998 CLUES model for either resource protection or suburban development, and overall, appeared to score only relatively better for suburban uses in a limited area.

The county environmental commission summarized its environmental concerns at its November 15, 2000, meeting.  It voted against a change in the land-use plan and moved that the parcel remain as a resource-protection area.  Environmental concerns raised included questions regarding the probability of future sinkholes, the potential of carcinogens in the water, and the potential for explosive gases associated with the landfill.  The commission also expressed concerns for the safety of children playing in this area and health-related issues for families. 

The planning advisory commission met on November 16, 2000.  It held a public hearing on the land-use-plan amendment and zone-change amendment.  The commission reached no agreement and tabled the amendments.  The planning advisory commission again addressed the amendments at its January 4, 2001, hearing.  After the public hearing closed, the planning advisory commission voted to recommend approval of the land-use-plan amendment and to send the zoning-district amendment to the county board without recommendation.

In January 2001, the planning department staff provided the county board with two recommendations regarding appellant’s land-use-amendment proposal.  First, staff stated that if the county board placed priority on the CLUES model criteria, then staff would recommend denial of the land-use amendment because an insignificant portion of the site (less than five acres out of 113.5) scored as “next best 1500 acres.”  Alternatively, if the county board concluded that the general-land-use-plan’s policies regarding the site’s road access; proximity to employment, commercial, or educational centers; and adjacency to the recent expansion of Rochester’s 25-year urban-service area outweighed their consideration in the CLUES model, then staff noted that a case could be made supporting approval of the land-use-plan amendment.

The Olmsted County Board met on January 23, 2001, and addressed numerous landfill concerns during the public hearing.  It noted that presently there were no off-site wells known to be contaminated because of the landfill, but monitoring of any wells may still be required; and, although there was some gas migrating off-site, the gas generally dispersed into the ambient atmosphere resulting in no risk of explosive gases.   Despite reassurances regarding landfill concerns, the county board still had to address the criteria in the land-use plan when making its decision.  After the public hearing, individual commissioners expressed their reasons either for or against the amendment. 

On February 6, 2001, the county board voted to deny appellant’s request to amend the land-use plan and zoning ordinance.  The zoning amendment was then denied because the land-use plan was denied.


The standard of review for all zoning decisions is limited and is merely to determine whether the local authority’s action was reasonable.  Honn v. City of Coon Rapids, 313 N.W.2d 409, 416-17 (Minn. 1981).  We make an independent examination of a local authority’s record and decision, without deference to the trial court’s review of the same record.  City of Barnum v. County of Carlton, 394 N.W.2d 246, 248 (Minn. App. 1986), review denied (Minn. Dec. 17, 1986).  The mere fact that we might have concluded differently from the local authority does not invalidate the authority’s decision if the local officials acted in good faith and within the broad discretion accorded them by law.  St. Croix Dev., Inc. v. City of Apple Valley, 446 N.W.2d 392, 398 (Minn. App. 1989), review denied (Minn. Dec. 1, 1989). 

In making a zoning determination, the local authority is formulating public policy, so the inquiry into reasonableness is to determine whether the local authority’s decision promotes the public health, safety, morals, or general welfare of the community.  Honn, 313 N.W.2d at 417.  We will set aside a routine municipal decision only when the decision has no rational basis.  White Bear Docking & Storage, Inc. v. City of White Bear Lake, 324 N.W.2d 174, 176 (Minn. 1982).  A local authority’s denial of a rezoning request is not arbitrary when at least one of the reasons given for the denial promotes the public welfare.  Honn, 313 N.W.2d at 417. 


            Appellant argues that the reasons for denial of the land-use-plan amendment are unreasonable, arbitrary, capricious, and are not supported by the record.  Appellant argues that discrepancies exist among the facts presented, the commissioners’ stated positions, and the county board’s adopted findings.  We disagree and address appellant’s arguments in turn.

            First, the facts in the record indicate that the county board adopted a policy in 1998 that determining the “next best 1500 acres” for development was to be based on a case-by-case basis, on a particular property’s 1998 CLUES scores, and on the policy statements in the land-use plan.  Based on this model, the facts show that appellant’s property contains only five of 113.5 acres to be in the “next best 1500 acres” considered to be appropriate for suburban development, and that the overall score shows that the site is relatively more appropriate to be classified for resource protection.  Although appellant claims that failing to rerun the CLUES model was arbitrary and capricious, it is not for us to dictate to the county board such policy determinations.

The facts also show that valid concerns existed regarding sinkholes on appellant’s property, methane-gas migration, and water contamination from the adjacent former landfill.  The record clearly indicates that sinkholes exist on the property and that there is a high probability of future sinkhole development.  As to the landfill issues on the record before us, there evidently remains a concern regarding the possibility of a future active-landfill-gas-extraction system.  And evidence shows that water contaminants exist in the upper aquifer and that the MPCA preferred that a suburban development on appellant’s property be supplied with municipal water or with special wells dug into an uncontaminated aquifer.  Therefore, based on the numerous meetings and hearings on the environmental issues, and notwithstanding the reassurances regarding water contamination and gas migration, the concerns were not without support in the record.

            Second, at the county board meeting, individual commissioners voiced their concerns, which included policy issues and environmental problems, in declining to support the land-use amendment.  But we disagree with appellant’s argument that these statements constitute the county board’s findings or somehow conflict with the findings.  An individual commissioner’s musings on the record do not represent the formal findings of the county board as a whole.  And simply because an individual commissioner expresses his or her thoughts on the record does not mean that these are his or her only considerations in denying the land-use amendment.  Notwithstanding the existence of reassurances on environmental concerns, the concerns were not without support in the record; and a vote on the land-use-plan amendment, nonetheless, required the county board to consider the policies and criteria in the land-use plan.

            Finally, the county board considered the policies and relevant criteria.  As we understand the county’s position on appeal, the county board denied the land-use amendment because it was not consistent with the policies in the land-use plan as a whole and because there were legitimate, factually supported environmental concerns.  The resolution denying the land-use plan was based on the county board’s formal findings that (1) no mistakes were made in the original data used to derive the current plan map; (2) although the county has grown a great deal, the character of the property and surrounding area has not significantly changed and does not meet the criteria for redesignation as suburban development; (3) the policies related to the proposal have not changed since the 1998 CLUES model was adopted; (4) there is not an unanticipated shortage of other land available for suburban development; (5) only five of the 113.5 acres scored as equally suited to or better suited than other land designated for suburban development; and (6) the CLUES model scores were not consistent with some of the land-use-plan’s policies, and, because a high probability for sinkhole formation existed on a significant portion of the site, the plan recommends the protection of such geologically sensitive lands. 

Because the county board’s formal findings are supported in the record and are based on policy determinations promoting the general welfare of the community, the county board’s denial of the land-use amendment was not unreasonable.  Therefore, we affirm the county board’s denial of the land-use amendment.


            Appellant concedes that denial of the rezoning request is proper if the denial of the land-use amendment is reasonable.  Because the land-use-plan amendment was reasonably denied, the county board’s denial of the rezoning request was appropriate.