This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Shannon Joseph Hinnenkamp,





Benton County Planning Commission,



Filed July 12, 2005


Halbrooks, Judge


Benton County Planning Commission

File No. 04-437


John A. Stielow, Stielow Law Offices, PLLC, P.O. Box 7063, St. Cloud, MN 56302 (for relator)


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


            Considered and decided by Halbrooks, Presiding Judge; Minge, Judge; and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N


            Relator challenges the Benton County Planning Commission’s denial of an after-the-fact conditional-use permit to operate a quad residential-housing unit within an area zoned R-2, single-family residential, contending that the decision was arbitrary and capricious because (1) there were inadequate findings to support the decision, (2) the commission erred in failing to impose specific corrective conditions, and (3) the commission violated relator’s right to a fair hearing because it did not allow his rebuttal to public statements.  Because (1) the record provides reasonable support for the commission’s decision, (2) relator did not meet his burden of demonstrating that the proposed use would conform to the standards for issuance of a conditional-use permit, and (3) the commission did not violate relator’s due-process rights, we affirm.


            Relator Shannon Joseph Hinnenkamp appeals from a decision of respondent Benton County Planning Commission (county) denying his application for a conditional-use permit (CUP).  Relator bought the property in question in 1996.  The property is in an area zoned R-2 residential.  The permitted residential use in an R-2 zone is “single-family detached dwellings.”  Benton County, Minn., Dev. Code (code) §§ 7.3.1, .4.1 (2003).  In October 2003, the code was amended to allow quad residential units as a conditional use.  See id., § 7.4.2 (2003) (allowing, as conditional uses, “triplex and quad residential housing units on properties served by a public, community or central sewage treatment system”). 

            In 1998, relator obtained a land-use permit allowing him to move a “double wide” manufactured home to the property.  In 1999, he obtained a permit authorizing the construction of a garage, located 5 to 6 feet from the home.  Relator later built a concrete structure and placed the double-wide home on top, creating a two-story building, along with an attached garage.  The record indicates that the structure on the property had been converted into a quad prior to the October 2003 amendment to the code. 

In January 2004, relator applied for an “after-the-fact [CUP] to operate a quad residential housing unit” on the property.  After a public hearing on the matter, the county denied relator’s application. 

            On July 16, 2004, relator reapplied for a CUP to operate a quad rental unit.  A public hearing was held on August 24, and the county heard testimony from several neighbors who opposed relator’s application.[1]  The county then discussed the criteria for granting a CUP, made oral findings on the criteria, and voted to deny the CUP request.  The county subsequently sent relator a letter confirming the decision and stating the county’s findings.  A copy of the decision was also filed with the Benton County Recorder.  This certiorari appeal follows.


I.          Denial of Conditional-Use Permit

Relator challenges the county’s denial of his application for a CUP, contending that the county acted in an arbitrary and capricious manner by failing to make adequate findings of fact to support its decision.  Decisions of a county to grant or deny a CUP are quasi-judicial in nature and reviewable by writ of certiorari.  Interstate Power Co. v. Nobles County Bd. of Comm’rs, 617 N.W.2d 566, 574 (Minn. 2000).  We review quasi-judicial zoning decisions to determine whether the municipality’s actions were arbitrary and capricious.  VanLandschoot v. City of Mendota Heights, 336 N.W.2d 503, 508 (Minn. 1983).  Our review of the county’s decision is “deferential . . . as counties have wide latitude in making decisions about [conditional] use permits.”  Schwardt v. County of Watonwan, 656 N.W.2d 383, 386 (Minn. 2003).  A county’s land-use decision will not be overturned “unless it has no rational basis.”  Molnar v. County of Carver Bd. of Comm’rs, 568 N.W.2d 177, 181 (Minn. App. 1997).

A county’s denial of a CUP is arbitrary when the applicant establishes that all of the standards specified by the zoning ordinance as conditions of granting the permit have been met.  Zylka v. City of Crystal, 283 Minn. 192, 196, 167 N.W.2d 45, 49 (Minn. 1969).  If the proposed use is expressly authorized by the ordinance, the county may only deny the CUP “for reasons relating to public health, safety, and general welfare.”  C.R. Invs., Inc. v. Vill. of Shoreview, 304 N.W.2d 320, 324 (Minn. 1981).  But denial of a rezoning request “is not arbitrary when at least one of the reasons given . . . satisfies the rational basis test.”  St. Croix Dev., Inc. v. City of Apple Valley, 446 N.W.2d 392, 398 (Minn. App. 1989) (emphasis added), review denied (Minn. Dec. 1, 1989).  When the factual basis for the denial has even “the slightest validity,” we must defer to the municipality’s decision.  White Bear Docking & Storage, Inc. v. City of White Bear Lake, 324 N.W.2d 174, 176 (Minn. 1982).  The burden is on the applicant to persuade the appellate court that the municipality’s reasons for denying the CUP are without factual support in the record or legally insufficient.  Hubbard Broad., Inc. v. City of Afton, 323 N.W.2d 757, 763 (Minn. 1982).    

Whether a decision regarding a CUP is reasonable is measured by assessing whether the standards stated in the ordinance have been met.  See White Bear Docking & Storage, 324 N.W.2d at 176 (stating that “‘reasonableness’ is measured by the standards set out in the local ordinance”).  Here, the code provides:

In granting a [CUP], the [county] 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 [county] shall make the following findings where applicable:


(1)      Will the use create an excessive burden on existing parks, schools, streets and other public facilities and utilities which serve or are proposed to serve the area?


(2)      Is the use sufficiently compatible or separated by distance or screening from adjacent agricultural or residentially zoned or used land so that existing homes will not be depreciated in value and there will be no deterrence to development on vacant land?


(3)      Does the structure and site have an appearance that will not have an adverse effect upon adjacent properties?


(4)      Is the use, in the opinion of the [county], reasonably related to the existing land use?


(5)      Is the use consistent with the purposes of the [code] and the purposes of the zoning district in which the applicant intends to locate the proposed use?


(6)      Is the use in conflict with the Land Use Plan of the county?


(7)      Will the use cause traffic hazards or congestion?


(8)      Will the use violate the wetland provisions of Minnesota Statutes Chapter 103G?


Benton County, Minn., Dev. Code § 11.6 (2004).  After listening to testimony from relator and several of his neighbors, the county considered these factors and determined:

1)        The use will create an excessive burden on existing parks, schools, streets and other public facilities and utilities which serve or are proposed to serve the area.  The vote was 5-1.  Discussion: Carol said that from the neighbors[,] the [county] heard that this is a narrower road with more traffic [and] she felt this would cause a burden.  Bob asked what difference one or two more cars would make.  Carol felt there would be more cars.  Bob said that the Schafer project to the north would bring in more traffic.  Butch said that development would have more than one access.


2)        The use will not be sufficiently compatible or separated by distance or screening from adjacent agricultural or residentially zoned or used land so that existing homes will not be depreciated in value and there will be no deterrence to development of vacant land.  The vote was 6-0.  Discussion: Carol stated that this site doesn’t have sufficient screening.  Bob said that if [relator] would have come back with a drawn plan to make this structure more compatible with the area [it] might have made a big difference.  He stated that the tri-plex in the area that was granted [a CUP] was well[-]screened and hardly noticeable.


3)        The structure and site shall have an appearance that will have an adverse effect upon adjacent properties.  The vote was 6-0.  Discussion: Carol said that adjacent property owners stated that the [] site does have an appearance that will have an adverse effect on the adjacent properties.  Bob agreed that it does, if there was a plan to make the structure more aesthetically pleas[ing] but as it stands now[.]  If the applicant would have c[o]me in before the structure was built[,] the [county] would have requested a drawing to show what it would have looked like, [because] the structure is not compatible.


[4])     The use, in the opinion of the [county], is not reasonably related to the existing land use.  The vote [was] 6‑0.  Discussion: Carol said no.  Sue said not for this area. 


[5])     The use is not consistent with the purposes of the [code] and the purposes of the zoning district in which [relator] intends to locate the proposed use.  The vote was 6-0.  Discussion: Carol said the request doesn’t meet the criteria.  Darrell said that in the “R-2” [d]istrict[,] quads are allowed.  Butch said that the quad would fit but [that] something would need to be done about the appearance.  Carol stated that no plans were presented to change the appearance of the structure. 


[6])     The use is in conflict with the [l]and [u]se [p]lan of the county.  The vote was 5-1.  Discussion: Sue stated that as the structure sits now, it is in conflict. 


[7])     The use will cause traffic hazards or congestion.  The vote was 5-1.  Discussion: Carol stated that the [county] heard from the neighbors that there is enough concern that this would cause hazards or congestion. 


[8])     The use will not violate the wetland provisions of Minnesota Statutes Chapter 103G. . . . 


Relator argues that these findings are inadequate and merely conclusory.  It is true that findings supporting the denial of a CUP must be “recorded or 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).  But here, at least some of the findings are more than simple conclusory statements and reflect discussion and analysis of the relevant factors. 

The county’s second finding of fact states that relator’s “use will not be sufficiently compatible or separated by distance or screening from adjacent agricultural or residentially zoned or used land so that existing homes will not be depreciated in value and there will be no deterrence to development of vacant land.”  This finding is legally sufficient because it is reasonably related to the promotion of the public health, safety, and general welfare of the community.  C.R. Invs., Inc., 304 N.W.2d at 324. 

There is also factual support for the finding.  Neighbors expressed concern about the appearance of the property and the fact that there was no screening of the buildings.  One neighbor noted that relator had installed “commercial[-]type lights on the outside” of the garage and that the property did not fit the residential character of the neighborhood.  Another neighbor commented that unlike most of the neighborhood homes, which look “very nice,” relator had put up a “tin shed.”  One of the board members noted that the development was not compatible with the area and was “sitting out like a sore thumb.” 

Likewise, the third finding of fact—that the appearance of the structure and site “will have an adverse effect upon adjacent properties”—relates to the general welfare of the community and is factually supported.  Once again, there was testimony from relator’s neighbors on this point.  In addition, the county noted that the structure was not aesthetically pleasing and indicated that if relator had come in prior to constructing the building, drawings of the proposed structure would have been requested.

Relator also states that the county’s denial must be based on something more concrete than neighborhood opposition and implies that it was not.  It is appropriate to consider neighborhood opposition to zoning requests.  Swanson v. City of Bloomington, 421 N.W.2d 307, 313 (Minn. 1988).  But generalized or unsupported neighborhood opposition does not, by itself, provide a legally sufficient reason for denial.  Chanhassen Estates Residents Ass’n v. City of Chanhassen, 342 N.W.2d 335, 340 (Minn. 1984); Minnetonka Congregation of Jehovah’s Witnesses v. Svee, 303 Minn. 79, 85, 226, N.W.2d 306, 309 (1975).  

Here, many of the worries expressed by the neighbors are neither generalized nor unsupported.  Opposition was based on the appearance and lack of screening on the property as well as traffic concerns.  Moreover, the record does not support relator’s contention that the county’s denial was based solely on neighborhood opposition.  The board members independently discussed and assessed the factors set forth in the code regarding the decision to grant or deny a CUP.

Our standard of review is determinative.  We must defer to the county’s decision to deny a CUP, when that decision has even “the slightest validity.”  White Bear Docking & Storage, 324 N.W.2d at 176.  On this record, relator has not demonstrated that the county’s reasons for denying the CUP are factually or legally impermissible.  Id.; Hubbard Broad., Inc., 323 N.W.2d at 763.  Further, he has not shown that the county’s findings are inadequate and conclusory.  Honn, 313 N.W.2d at 416.  Because “at least one” of the county’s proffered reasons for its denial of relator’s application satisfies the rational-basis test, the denial of the CUP was not arbitrary or capricious.  St. Croix Dev., Inc., 446 N.W.2d at 398.

Relator next argues that the county erred by failing to adopt and impose “specific conditions” for acceptance of relator’s application for a CUP.  He asserts that the fact that the county “did not address what was necessary, in the way of screening, or, consider screening suggestions given at the meeting. . . . shows that the [county] was unwilling to accept the application with any conditions.” 

Under Minnesota law, a county planning board

may by ordinance designate certain types of developments, including planned unit developments and certain land development activities as conditional uses under zoning regulations. Conditional uses may be approved upon a showing by an applicant that standards and criteria stated in the ordinance will be satisfied. Such standards and criteria shall include both general requirements for all conditional uses and, insofar as practicable, requirements specific to each designated conditional use.


Minn. Stat. § 394.301, subd. 1 (2004) (emphasis added).  The statutory language is plain and unambiguous—it is relator’s responsibility to demonstrate to the county that the standards for granting a CUP will be met.  See Mut. Serv. Cas. Ins. Co. v. League of Minn. Cities Ins. Trust, 659 N.W.2d 755, 760 (Minn. 2003) (stating that “where the intention of the legislature is clearly manifested by plain and unambiguous language, [appellate courts] have neither the need nor the permission to engage in statutory interpretation”).  As we recently concluded with respect to identical language in the Municipal Planning Act, the phrase “by the applicant” “unambiguously places the burden on the applicant to prove the proposed use will conform to a [municipality’s] stated standards and criteria for the issuance of a conditional use permit.”  Roselawn Cemetery v. City of Roseville, 689 N.W.2d 254, 259 (Minn. App. 2004) (citing Minn. Stat. § 462.3595, subd. 1 (2002)).

            Relator contends that the county erred because it did not consider screening suggestions given at the meeting.  But relator offered no specific plans—the only suggestions were submitted by his neighbors.  Relator only noted at the hearing that “there was a recommendation of screening either through fencing or some type of vegetative plan” and indicated that he would “be happy to discuss” screening his property.  Relator thus did not meet his burden to prove that the proposed use would meet the county’s stated criteria for the issuance of a CUP.  Cf. Roselawn Cemetery, 689 N.W.2d at 259 (stating that burden of demonstrating conformity to criteria lies with applicant).  Consequently, the county did not err in denying relator’s application for a CUP.

II.        Due Process

Relator argues that the county violated his procedural due-process rights by not allowing him to rebut a contention that he was not living on the property.  “[Q]uasi-judicial proceedings do not invoke the full panoply of procedures required in regular judicial proceedings.”  Barton Contracting Co. v. City of Afton, 268 N.W.2d 712, 716 (Minn. 1978).  The due-process rights required are simply “reasonable notice and a right to be heard.”  Id.

At the public hearing, relator indicated that he was currently living on the property and stated that he would continue to do so.  Although this testimony was not offered in rebuttal, it was nonetheless presented at the hearing.  Accordingly, relator’s due-process rights were not impaired.

Even if the county did err by denying relator an opportunity to speak in rebuttal, he was not prejudiced by this decision.  There is no indication in the record that whether or not relator lived on the property had any bearing on the county’s decision.  Because relator has not demonstrated prejudice, we will not disturb the county’s decision.  See Minn. R. Civ. P. 61 (stating that harmless error is to be ignored); Rowell v. Bd. of Adjustment of the City of Moorhead, 446 N.W.2d 917, 919 (Minn. App. 1989) (stating that “[t]echnical defects made when complying with procedural requirements do not suffice to overturn governmental action, so long as the defects do not reflect bad faith, undermine the purposes of the procedures, or prejudice the rights of those intended to be protected by the procedures”), review denied (Minn. Dec. 15, 1989).


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

[1] The county also received one letter in support of granting the CUP and one in opposition, both of which were read into the record.