This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Douglas County Board of Commissioners, et al.,
Gary J. Botzet,
Diane E. Botzet,
Application No. 50
James P. Peters, Karna M. Peters, Peters & Peters, PLC,
Jay T. Squires, Ratwik, Roszak & Maloney, P.A., 300
Gary and Diane Botzet,
Considered and decided by Halbrooks, Presiding Judge; Minge, Judge; and Parker, Judge.*
Relator Kenneth Steiger filed a writ of certiorari with this court challenging the decision by respondent Douglas County to grant respondents Gary and Diane Botzet a conditional use permit (CUP), for a feedlot. Steiger argues that the county erred because the CUP application did not include a required map and because a proper hearing was not conducted. Steiger also suggests that a dwelling is located within 1,000 feet of the proposed feedlot, in violation of the requirements of the county ordinance. Because Steiger failed to timely raise his map objection, he waived that argument. Because the county Planning Advisory Commission conducted a hearing, made findings, and a record exists and because Steiger did not raise legal or systemic objections to the grant of the Botzet CUP, we affirm. Respondent Douglas County requests that certain statements in Steiger’s briefs be stricken. Because this challenge was not raised in a proper motion and because the statements do not affect our decision, we deny the county’s request.
In July 2004,
respondents Gary and Diane Botzet filed a conditional use permit (CUP)
application for a feedlot for 68 animal units with the planning office in
A map or aerial photo showing the dimensions of the feedlot, showing all existing homes, buildings, lakes, ponds, water courses, wetlands, roads, wells, contour and surface water drainage within 1,000 feet of the feedlot.
The Botzets submitted a sketch of the proposed feedlot with their application. The sketch shows where the feedlot will be located in relation to the Botzets’ house and machine shed. The application indicates no maps were submitted. The record on appeal includes two aerial photographs: one appears to be of the Botzets’ farm, and the second is an aerial photograph of a larger area, with the site of the proposed feedlot located in the far southwest corner. Because it appears that the southerly and westerly border of this aerial photograph is less than 1,000 feet from the feedlot site, it is not possible to determine from the photographs in the record whether there are buildings within 1,000 feet.
The Douglas County Land & Resource Management Department (Department) prepared a six-page report on the Botzets’ CUP application that concluded that all requirements, including setbacks, were met and recommended approval with three conditions. These conditions were: (1) no more than 68 animal units; (2) the operation be limited to the site shown in the drawing; and (3) proper waste disposal be used. On August 17, 2004, the Douglas County Planning Advisory Commission (PAC) held a public hearing on the CUP application. The record indicates that relator Kenneth Steiger appeared and objected to the CUP application at the hearing because of “a need for future development” and because Steiger “would prefer the location [of the feedlot] be moved to the southeast corner of [Botzets’ farm].” The PAC voted unanimously to recommend approval of the CUP subject to the three conditions identified by the Department. The PAC made the following findings of fact: “1. The use is compatible with the surrounding area as this property is located within [an] agriculturally zoned area. 2. The use is in conformance with the Land Use Plan of the County because all requirements will be met with this operation.”
week later, the Douglas County Board of Commissioners (Board) met and
considered Botzets’ CUP application. Steiger
claims that he was present at the Board meeting, but he did not make any
comments at the meeting. The minutes do
not reflect whether Steiger was present.
The Board voted unanimously to accept the PAC’s recommendation and
approve respondents’ CUP subject to the same three conditions that had been suggested
by the Department. Relator Steiger filed
a writ of certiorari with this court to challenge the Board’s decision to
approve the CUP.
first issue we examine is whether Steiger has standing to bring this
appeal. The Douglas County, Minn.,
Zoning Ordinance § VI(G)(2)(b) (2005), provides that “any person or
persons, jointly or severally, aggrieved by any decision” of the county board
may appeal the decision. A person is
aggrieved when a county’s action adversely “operates on his rights of property
or bears directly upon [the person’s] personal interest.” Stansell
v. City of
The second issue is whether the Board erred by granting the CUP when the Botzets’ application failed to include a map showing the area within 1,000 feet of the site of the proposed feedlot. Steiger argues that the ordinance prohibits feedlots within 1,000 feet of an existing dwelling, suggests that the missing map would have shown the dwelling within 800 feet of the proposed feedlot, and he argues that the failure to include a map requires reversal of the decision to issue the CUP. Respondent Douglas County argues that Steiger failed to object to the lack of a map in the proceedings before the PAC or the Board, that the Department’s staff determined that no dwelling existed within 1,000 feet and communicated that determination in writing to the PAC before the permit was issued, that the PAC found that all legal requirements were met, and that Steiger’s suggestions of an existing dwelling was outside the record and was factually misleading.
a general rule, failure to raise an issue in a trial court precludes raising
that issue for the first time on appeal.
See In re Application of
Minnegasco, 565 N.W.2d 706, 713 (
In this case, the minutes of the PAC indicate that Steiger “opposed the [Botzets’ CUP] application due to the need for future development and would prefer the location be moved to the southeast corner of the property.” Steiger apparently wanted the feedlot more than 1,000 feet from his farm so that it would not interfere with construction or development on his land. There is no indication that he objected to the lack of a map or to the location of a dwelling. The application fails to include a map showing all improvements within 1,000 feet. Certainly this is a significant omission. However, if this issue had been presented to the PAC, it could have been easily addressed and probably resolved. Raising the issue for the first time on appeal blindsides the respondents. It does not allow the PAC to address this question.
Steiger complains that the record of the proceeding before the PAC is so abbreviated that his full objection is not reflected and that we should not conclude that he failed to raise the map issue or the existence of a dwelling. Steiger has not made any offer of proof that he raised these issues and we decline to consider the merits of this argument on appeal or to remand without at least an offer of proof that Steiger did indeed raise the argument and that the record erroneously fails to include that information.
we are not obliged to reach the significance of the failure to include the map,
we will address it to assure the parties that their case is fully
this case, we cannot conclude that the lack of a map is immaterial. The
The third issue is
whether the issuance of the Botzets’ CUP is invalid because the nature and
record of the
made by a county board regarding a CUP are quasi-judicial and reviewable by a
writ of certiorari. Picha v.
A county board may
approve a CUP if the applicant shows that all standards and criteria in the
county ordinance will be satisfied.
contested cases in which a CUP is denied or the county board is on notice of
specific legal objections to the CUP, the county board must record the reasons
for its decision in more than a conclusory manner. See
Schwardt, 656 N.W.2d at 389 (contentions in some cases are so compelling as
to require explanation); Zylka v. City of
also challenges the adequacy of the hearing process in this case. In
there is a minimal record of the PAC hearing.
There are minutes that indicate that Steiger objected to the Botzets’
CUP on the grounds it would interfere with development of his land and urged
that the feedlot be relocated to a corner of the Botzets’ farm to avoid that
impact. Someone spoke in favor of the
feedlot. A six-page staff report with
recommendations was apparently provided to the
In reviewing local government matters that have not been the subject of serious dispute, this court should avoid imposing requirements regarding a record and detailed findings in addition to those mandated by statute or ordinance. The detail required for effective judicial review depends on the nature and extent of the dispute. The more significant the dispute, the more detailed the record and findings should be. Unless a party makes a significant objection before the governmental body, he or she cannot expect this court to impose substantial, formal requirements. If a written or oral objection indicates a serious factual controversy or legal shortcoming, it is significant. Absent such an objection, the local body ought to be able to consider matters on what would be comparable to a default calendar in the courts. Steiger does not claim to have made a specific objection to the CUP other than that he wanted the feedlot moved to another location on Botzets’ farm so it would not affect development of his land. This does not present a legal dispute or serious factual controversy.
Steiger has not shown that the CUP, the PAC action, or the Board action violates the county ordinances or statute. There is no showing that the PAC failed to consider all relevant evidence when deciding to grant the CUP or that the decision was arbitrary. See Schwardt, 656 N.W.2d at 389. In the absence of a showing that the procedural requirements were violated by the issuance of the Botzets’ CUP, we affirm.
its brief, the county asks us to strike all references in Steiger’s brief to a
residence or dwelling within 800 feet of the proposed feedlot because nothing
in the administrative record shows that such a residence exists. The correct procedure to object to the
portions of a party’s brief that are not supported by the record is to file a
motion to strike the unsupported portions.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
discussed below in part IV, this information about the dwelling does not appear
in the record, and the county objects to Steiger’s introduction of it on
appeal. The county claimed at oral
argument that the structure is an abandoned, uninhabitable mobile home and does
not qualify as a dwelling. Because none
of this information is part of the record, we do not consider this factual
 We note that Steiger does not challenge the Botzets’ CUP on the grounds that the county failed to properly consider map-related matters such as surface water, wells, roads, or buildings other than dwellings. We recognize there is no staff determination relative to those matters. Because these matters are not raised on appeal, we do not reach them.
Steiger does not assert the county’s issuance of a CUP to the Botzets violated
his right to procedural due process.
However, we note that the contours of due process requirements are
affected by the nature of the proceeding.
Cf. Barton Contracting