This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-750

 

Dead Lake Association, Inc.,

Relator,

 

vs.

 

Otter Tail County, Minnesota,

Respondent,

 

R. Murray Partnership, LLP,

Respondent.

 

Filed March 9, 2004

Affirmed in part, reversed in part, and remanded

Harten, Judge

 

Land and Resource Management Otter Tail County

Agency File No. 56-383

 

Gerald W. Von Korff, Rinke-Noonan, P.O. Box 1497, St. Cloud, MN 56302-1497 (for relator)

 

Robert L. Russell, III, 220 West Washington Avenue, Suite 103, P.O. Box 117, Fergus Falls, MN 56538-0117; and

 

Peder A. Larson, 5200 Willson Rd., Suite 150, Edina, MN 55424 (for respondent R. Murray Partnership)

 

Michael T. Rengel, Pemberton, Sorlie, Rufer & Kershner P.L.L.P., P.O. Box 866, Fergus Falls, MN 56538-0866 (for respondent Otter Tail County)

 

            Considered and decided by Klaphake, Presiding Judge, Harten, Judge, and Forsberg, Judge.*

 

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

            Relators challenge the county’s grant of a conditional use permit (CUP) for a planned unit development (PUD), arguing that the county lacks the authority to grant the CUP because the shoreland at issue was not properly zoned for planned unit developments.  Relators also argue that the county’s approval of the CUP was improper.  Because the county’s shoreland management ordinance complies with state regulations, we affirm in part.  But because the county failed to make adequate findings on its decision to grant the CUP, we reverse in part and remand.

FACTS

Respondent R. Murray Partnership, LLP (the partnership) owns approximately 257 acres of land in Otter Tail County (the county) near Dead Lake, including roughly 29,000 feet of shoreline along Blue Heron Bay.  The partnership made plans to develop the land into a cluster development called the Blue Heron Bay Project (the project), consisting of a mixed residential and recreational community with 151 seasonal and permanent housing units.  The development also included plans for a general store, a restaurant, two swimming pools, a marina, and common mooring facilities.  Relator Dead Lake Association, Inc., is a group of area residents who oppose the development.

            On 20 November 2002, the partnership submitted an application for a CUP for the proposed cluster development to the county.  On 11 December 2002, the Otter Tail County Planning Commission (the planning commission) stayed consideration of the application and recommended that the Otter Tail County Board of Commissioners (the board) order an Environmental Assessment Worksheet (EAW).  The board followed the planning commission’s recommendation and ordered the EAW.

            The EAW was completed and distributed in January 2003, and the county received public comment on it through 5 March 2003.  On 19 March 2003, the planning commission considered the EAW and a summary of the voluminous comments received by the county.  The planning commission found that the partnership amended the project proposal to mitigate environmental impacts, the revised proposal fell below the maximum density limitations in the Shoreland Management Ordinance of Otter Tail County, Minnesota (SMO), and the county would be able to mitigate environmental effects through its regulatory authority.  The planning commission recommended that an Environmental Impact Statement (EIS) was unnecessary.  On 1 April 2003, the board followed the planning commission’s recommendation and issued a negative declaration concerning the need for an EIS.[1]

            Approximately two weeks later, the planning commission met and considered the pending CUP application.  The planning commission approved the application for a maximum 125 units and 102 boat slips with ten additional conditions noted in its meeting minutes:

1. The additional land (island/peninsula) must be included as being part of the project.  2. A storm water management plan must be approved by the M[innesota] P[ollution] C[ontrol] A[gency].  3. An erosion control plan must be approved by the Land & Management Resource Management Office [of the county].  4. The sewage treatment system plan must be approved by the MPCA.  5. The demolition debris by the barn and the burn debris (from old cabins) must be cleaned up and appropriately disposed.  6. The applicant must not [use] Wetland I on the plan (received at the 4-16-02 P[lanning] C[ommission] Meeting) for storm water management. 7. Specific commercial use of any portion of the property will require subsequent PC approval.  8. Applicant must continue to work with O[tter] T[ail] C[ounty] and the DNR to protect the water resources of Dead Lake; the Developer agreed to a “no wake” zone around the peninsula; a buoyed channel to and from the north marina; and limits on the use of the small cluster dock proposed for the southern bay to sailboats, canoes, paddle boats & small fishing/hunting boats; and/or other accommodations as identified and agreed to in the ongoing discussions with the County and the DNR.  9. Applicant must work with the DNR to protect the eagle’s nest on the property.  10. The project must be completed in ten (10) years.

The board met the following week, on 22 April 2003, approved the CUP with the ten conditions recommended by the planning commission.  The county notified the partnership by letter of the board’s approval on 2 May 2003.  Relator now raises both a procedural issue, whether the board had authority to approve a CUP, and a substantive issue, whether the CUP should have been approved.

D E C I S I O N

1.         Zoning and Authority

            In 1990, the Minnesota Legislature declared shoreland development a state concern by creating new limitations on shoreland development and requiring counties to adopt state standards in their local zoning ordinances.  1990 Minn. Laws ch. 391, art. 6, §§ 25-29 (codified as amended at Minn. Stat. § 103F.201, .211, .215 (2002)).  The statutes direct the Commissioner of the Department of Natural Resources (DNR) to adopt standards, criteria, and a model ordinance.  Minn. Stat. §§ 103F.205, subd. 2; 103F.211, subd. 1 (2002).  The Legislature ensured local compliance with the DNR standards by requiring any county whose ordinance failed to meet the standards to pay the cost incurred by the commissioner to adapt the model ordinance to the county.  Minn. Stat. § 103F.215 (2002).  The Shoreland Management Ordinance of Otter Tail County, Minnesota (SMO) was revised on 5 February 1992, presumably to comply with the DNR standards; it was revised most recently on 1 January 2001.

The DNR standards provide that where local governments want to allow PUDs, “the land use districts in which [PUDs] are an allowable conditional use must be identified in their official controls and on a zoning map.”  Minn. R. 6120.3800, subp. 2 (2001).[2]  Relator argues that, because the County has not followed the zoning process required to designate land use zoning districts in which PUDs are an allowable conditional use, the current ordinance is insufficient to allow the grant of a permit for PUDs contemplated under rule 6120.3800, and therefore the board lacked authority to grant the CUP for the proposed cluster development.[3]

As part of the rules, the DNR classified all public waters into specific classes based upon the development and environmental characteristics of each lake or river.  Minn. R. 6120.3000, subp. 1 (2001).[4]  The rules require that development of shoreland along public waters be controlled by “land use zoning districts which are designated to be compatible with the classes of public waters,” and describe five types of districts.  Minn. R. 6120.3100 (2001).[5]  The rules then set forth a chart identifying whether specific uses are permitted, conditional, or prohibited depending on the land use zoning districts and the class of lake or river in question.  Minn. R. 6120.3200, subp. 4 (2001).

The SMO does not use the descriptions for land use zoning districts promulgated by the rules, but it states that the land “surrounding each public body of water is [classified] . . . according to the document entitled ‘Waters of Otter Tail County Classification’, which accompanies and is made a part of this ordinance.”[6]  Shoreland Management Ordinance of Otter Tail County, Minn. § III.1. (1 January 2001).  Because Dead Lake is classified as a natural environment lake, the SMO appears to classify the shoreland surrounding Dead Lake as a district that surrounds a natural environment lake, under the rules.  The SMO then lists specific uses and whether those uses are permitted, conditional, or prohibited based upon the class of lake or river.  Id. § III.2.-3.; Minn. R. 6120.3200, subp. 4.  Under both the rules and the SMO, cluster developments are conditional uses on natural environment lakes.  Therefore, at least with regard to this proposed development, the ordinance is not inconsistent with, and complies with, the standards set forth in the rules.

Relator argues that treating the shoreland of an entire lake as if it was open to cluster development is destructive of the planning process contemplated by the shoreland regulations, because it allows a developer to choose the site of a PUD based upon the lots the developer is able to purchase.  But relator ignores that the SMO designates cluster developments as a conditional use that requires prior county approval; developers do not have unfettered freedom to develop on any shoreland they wish.

We conclude that the board had authority to approve the CUP.

2.         CUP approval

Decisions of a county to grant or deny a CUP are quasi-judicial and are reviewed by writ of certiorari.  Picha v. County of McLeod, 634 N.W.2d 739, 741 (Minn. App. 2001).  Decisions to approve or deny a CUP are generally upheld unless this court’s independent review determines that the decision was arbitrary, capricious, or unreasonable.  Yang v. County of Carver, 660 N.W.2d 828, 832 (Minn. App. 2003).  Appellate review is deferential because counties have wide latitude in making decisions about such permits.  Schwardt v. County of Watonwan, 656 N.W.2d 383, 386 (Minn. 2003).[7]  A county’s approval of a CUP is traditionally subject to more deferential review than CUP denials.  Id. at 389 n.4; Sunrise Lake Ass’n, Inc. v. Chisago County Bd. Of Comm’rs, 633 N.W.2d 59, 61 (Minn. App. 2001).

            A grant of a CUP is first reviewed “to determine whether the county’s explanation of its reasons for granting the CUP are sufficient to allow judicial review.”  Sunrise Lake Ass’n, 633 N.W.2d at 61.  An order granting a CUP must demonstrate the county’s conclusion that the proposal has satisfied each of the ordinance’s conditions for approval.  Schwardt, 656 N.W.2d at 389.  Although counties need not prepare formal findings of fact, the reasons for their decisions must, at a minimum, be recorded or reduced to writing in more than a conclusory fashion.  Picha, 634 N.W.2d at 742.

            When the board decided to approve the CUP, it made no factual findings regarding the basis for its decision.  The only evidence in the record of the board’s decision is a copy of the 22 April 2003 meeting minutes and the letter informing the partnership of the CUP approval; neither states the reasons for the board’s decision.  Although the minutes mention the planning commission’s recommendation, the board did not adopt planning commission findings, and the planning commission did not make findings regarding its decision to recommend that the CUP be approved.[8]  The meeting was partially recorded, but the recording began after the board had already granted the CUP; the transcript makes no mention of the board’s decision to grant the CUP.[9]   See id. at 742-43 (reversing where the county board minutes contained insufficient detail and no evidence existed in the record to support the board’s decision); Sunrise Lake Ass’n, Inc., 633 N.W.2d at 62 (reversing where county’s decision does not contain adequate explanation of its reasons); but see Schwardt, 656 N.W.2d at 389 (use of checklist to determine whether application met standards of ordinance is sufficient).

A board’s failure to record any legally sufficient basis for its determinations establishes prima facie arbitrariness.  Zylka v. City of Crystal, 283 Minn. 192, 198, 167 N.W.2d 45, 50 (1969).  On this record, the board’s decision to grant the CUP is prima facie arbitrary for lack of findings.  Moreover, the board’s reasons for granting the CUP bear directly upon our ability to review the legality of the CUP.  Accordingly, we remand the matter to the county board to make a record indicating the basis for its decision.

            Affirmed in part, reversed in part, and remanded.

 



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

[1] We note that the board’s negative declaration on the need for an EIS is the subject of a separate action pending in district court.

[2] This provision also sets forth the criteria for a local government to consider when designating districts that would allow PUDs as a conditional use.

[3] The parties agree that the SMO provision about “cluster developments” corresponds to the rule addressing “planned unit developments.”

[4] The rules set forth three classes of lakes: (1) “Natural environment lakes” are often small and shallow, do not have much existing development or recreational use, and have limited capacity for further development and recreational use; (2) “Recreational development lakes” are medium-sized and characterized by moderate levels of existing recreational use and development; and (3) “General development lakes” are generally large and deep with heavily developed shorelines.  Id., subp. 1a.  Dead Lake was classified as a natural environment lake.

[5] The five different “land use zoning districts” are described as (1) “special protection district[s]” to limit and manage development in areas that either are generally unsuitable for development or have special historical, natural, or biological characteristics, (2) “residential district[s]” allowing for low to medium density seasonal and year-round residences, (3) “high density residential district[s]” for areas not well suited for standard, lot-block subdivisions, (4) “water-oriented commercial district[s]”, and (5) “general use district[s]” for areas that are already developed or suitable for concentrated urban and commercial uses.  Minn. R. 6120.3200, subp. 3 (2001).

[6] The Waters of Otter Tail County Classification lists each public body of water within the county, along with its DNR classification.  The SMO also provides for a fourth land use zoning district called “Sensitive Areas” for shoreland that is sensitive to development because of geographical features, including steep slopes, bluffs, or wetlands.  Dead Lake was not classified as a Sensitive Area shoreland.

[7] Relator argues that, because state shoreland zoning standards were implemented after local and county governments had failed to adequately protect lakes and rivers, deferential review of a county’s decision to grant a CUP under a shoreland zoning ordinance is inconsistent with the policy underlying the regulations.  But relator fails to cite any authority supporting this argument.  In addition, “the task of extending existing law falls to the supreme court or the legislature, but it does not fall to this court.”  Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987), review denied (Minn. 18 Dec. 1987).

[8] We note that both the board and the planning commission issued specific findings of fact and conclusions to support their decisions that an EIS was necessary.  But there is no indication in the record that the board relied on either of these documents in making its decision to grant the CUP.

[9] No transcript of the planning commission meeting is available because the tape recorder was operated at the wrong speed.