This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Stone Creek Golf Course, Inc., et al.,





Benton County Planning Commission,



Scott Johnson, et al.,



Filed ­­­February 25, 2003


Harten, Judge


Benton County Planning Commission

Agency File No. 02-142


John J. Berglund, Scott C. Baumgartner, Berglund & Baumgartner, Ltd., 2140 Fourth Avenue North, Anoka, MN 55303 (for relators)


Robert J. Raupp, Benton County Attorney, Courts Facility, P.O. Box 189, Foley, MN 56329 (for respondent Benton County Planning Commission)


Edward J. Laubach, Jr., Christopher W. Harmoning, Gray, Plant, Mooty, Mooty and Bennett, P.A., 1010 West St. Germain, Suite 600, St. Cloud, MN 56301 (for respondents Johnson)


            Considered and decided by Peterson, Presiding Judge, Harten, Judge, and Huspeni, Judge.*


U N P U B L I S H E D   O P I N I O N




Relators challenge the conditional use permit granted by respondent county to respondent landowners, arguing that notice of the hearing was defective and that the conditional use permit has no rational basis.  Because relators had actual notice of the hearing and because we conclude that the permit has a rational basis, we affirm.


Respondent Benton County Planning Commission (the planning commission) announced at a public hearing that respondents Scott and Carla Johnson, agricultural land owners, intended to apply for a Minnesota Pollution Control Agency (MPCA) feedlot related permit.  The Johnsons submitted to Benton County Department of Development (the department) an application for a conditional use permit (CUP) for construction of a livestock waste storage facility on their property.

The Benton County News published a notice, and, later, a corrected notice, of the public hearing to consider the Johnsons’ permit application.  The department also sent notice to the record owners of neighboring properties, but not to relators Robert and Mary Ann Schueller, who are record owners of neighboring property.  Respondent Scott Johnson also sent a letter to the owners of neighboring properties, informing them of the plan to expand the feedlot and giving details of the proposed expansion.  Johnson’s letter also indicated the time and place of the hearing and that it “would be an excellent opportunity for you to speak for or against the proposal.”

The planning commission held a public hearing on the Johnsons’ application.  All of the relators attended the hearing.  One of the Stone Creek Golf Course owners spoke, giving the owners’ position on potential problems from the Johnsons’ application; the Schuellers were present but did not speak.  After hearing comments and questions from Scott Johnson and both supporters and opponents of the Johnsons’ application, the planning commission voted four to one to grant the application. 

The department then confirmed the planning commission’s decision, ordered that the CUP be granted, and ordered the Johnsons to complete construction within one year.  The Johnsons complied; the waste storage facility is now operational.  Relators seek certiotari review of the department’s order, alleging that notice of the hearing was defective and that the CUP has no rational basis.[1]



1.         Notice

            Application of a statute to the undisputed facts of a case involves a question of law.  O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn. 1996).  Questions of law are reviewed de novo.  Morton Bldgs., Inc. v. Comm’r of Revenue, 488 N.W.2d 254, 257 (Minn. 1992). 

 Minn. Stat. § 394.26, subd. 2(b) (2000), provides that written notice of hearings on conditional use permits be sent to

owners of record within one-quarter mile of the affected property or to the ten properties nearest to the affected property, whichever would provide notice to the greatest number of owners. 


The statute provides no consequence for failure to comply, and no case is directly on point.

         Relators Robert and Mary Ann Schueller own property within one-quarter mile of the Johnsons’ property but did not receive notice.  Benton County concedes that omitting the Schuellers was an inadvertent error.

            Relators contend that this error entitles them to a trial or “an opportunity to augment the record in district court” because the error deprived relators “of their right to provide evidence and testimony in opposition to the Johnsons’ request for a conditional use permit.”  But relators were not deprived of their right to provide evidence and testimony.  The hearing transcript shows that the owners of relator Stone Creek Golf Course were at the hearing and that one of them spoke of the problems they anticipated if the CUP were granted.  Relators Robert and Mary Ann Schueller were also present at the hearing but chose not to speak; they objected to neither the lack of notice nor the Johnsons’ proposal.[2]

None of the relators demonstrated prejudice resulting from the defective notice of the hearing.  We note that all of them attended the hearing.  The right to complain of lack of notice is decreased by both actual notice and lack of prejudice.  See City of Bemidji v. Beighley, 410 N.W.2d 338, 342 (Minn. App. 1987) (finding that claim of lack of notice of public hearing on ordinance did not mandate reversal when complainant knew that she was in violation of ordinance).

Appellants rely on Swanson v. City of Bloomington, 421 N.W.2d 307 (Minn. 1988).  But Swanson implicitly rejects the view that “in all cases challenging municipal decisions in zoning matters, parties should be allowed to augment the record with additional relevant evidence.”  Id. at 313.   Parties are entitled to a trial or to augment the record only “[w]here the municipal proceeding has not been fair or the record of that proceeding is not clear and complete.”  Id.  Here, the proceeding was fair, in that those opposing the permit had the opportunity to speak, and the record shows that at least some of them did so.  We conclude that relators are not entitled to a trial or to augment the record on the ground of lack of notice.

2.         The CUP

            When reviewing a county board’s decision, this court must determine whether the decision was “unreasonable, oppressive, arbitrary, fraudulent, without evidentiary support, or based on an incorrect theory of law.  BECA of Alexandria, L.L.P.  v. County ex rel. Bd. of Comm’rs, 607 N.W.2d 459, 462 (Minn. App. 2000) (quotation omitted).  A court will overturn a county’s land use decision only where there is no rational basis for it.  Id. at 463.  Although a county has broad discretion to deny a CUP, if a zoning ordinance authorizes a use by special permit, the denial of a CUP must be based on reasons of public health, safety, and general welfare.  Id.  The Benton County Development Code indicates that livestock waste storage facilities are conditional uses provided that certain preliminary requirements, including obtaining a MPCA permit, are met.  It is undisputed that the Johnsons satisfied the preliminary requirements. 

            The Benton County Development Code also provides that,

[i]n granting a [CUP], the Planning Commission shall consider the effect of the proposed use upon the health, safety, morals, and general welfare of occupants of surrounding lands and water bodies.  Among other things, the Planning Commission shall make the following findings where applicable. 


Eight categories are then listed.  The planning commission discussed and voted on each category in connection with the proposed use.

 Relators contend that the planning commission did not properly consider category 1: whether the proposed use creates “an excessive burden on existing parks, schools, streets and other public facilities,” or category 2: whether the proposed use is “sufficiently compatible or separated by distance or screening from adjacent agricultural or residentially zoned or used land.”

            Discussion on the first category was limited to the comment of one commission member, who said, “I guess I feel the closeness of [relator] golf course and stuff there that would be a public facility.”  But even if the privately owned golf course is considered a public facility, testimony from the golf course owner failed to convince four of the five commission members that the Johnsons’ proposal would create an excessive burden. 

            As to the second category, one commission member proposed an amendment that would require that “enzymes be added to control the odor of the waste” and that “manure must be incorporated, air injected into the soil four to six inches in depth.”  Again, four of the five commission members approved the amended version of the CUP.  Their decision is supported by Scott Johnson’s testimony on how he proposed to control the odor and what he proposed to do with the manure. 

            We conclude that the hearing transcript demonstrates both evidentiary support and a rational basis for the planning commission’s grant of the CUP.


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

[1] Respondents moved this court to supplement the record with an affidavit of Scott Johnson and to strike the affidavit of David Rothfork that relators submitted in the appendix to their brief but that was not part of the record.    In its order of 27 December 2002, this court granted respondents’ motions.

[2] Evidence of the Schuellers’ presence at the hearing is provided by the uncontradicted affidavit of Scott Johnson.