This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
County of Douglas, Minnesota, by its Board of Commissioners,
Filed January 24, 2006
Toussaint, Chief Judge
Christopher D. Karpan, Douglas County Attorney, Douglas County Courthouse, 305 Eighth Avenue West, Alexandria, MN 56308; and
Paul D. Reuvers, Jason J. Kuboushek, Iverson Reuvers, LLC, 9321 Ensign Avenue South, Bloomington, MN 55438 (for respondent)
Considered and decided by Toussaint, Chief Judge; Dietzen, Judge; and Crippen, Judge.*
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
In this certiorari appeal from the county’s conditional approval of relator’s applications for a conditional use permit and a preliminary plat approval, relator argues that the no-dockage condition (a) was arbitrary and capricious because the county failed to adequately explain its basis; (b) exceeded the county’s authority to regulate land use; and (c) is an unconstitutional exaction. Because the county adequately explained its decision, did not exceed its authority, and did not violate relator’s constitutional rights, we affirm.
Owner and developer, Thomas Steffens, proposed a residential
planned unit development (PUD) on 26.7 acres, including wetlands and shoreland
On March 29, 2004, the Douglas County Planning Advisory Commission (PAC) met Mike Nyberg, relator’s surveyor, on the proposed site. Nyberg explained that the “mooring sites will be in the same place that the current one is located and a conservation easement will be placed along the shoreline.” At the PAC meeting the following week, the public expressed concerns over the destruction of vegetation, the length of the dock, the number of boats, the wetlands, and a nesting area.
In April, the
Two days later, petitioners, represented by the Lake Mary Lake
Association, requested an environmental assessment worksheet (EAW) for the
project. The petition noted that a major concern was the proposed 50-mooring
site dock extending more than 400 feet into the lake. The Department of Natural Resource’s (DNR)
Dean Beck sent a letter supporting an EAW to the Environmental Quality Board
(EQB). Subsequently, the EQB named
After the EAW review-and-comment period, relator proposed amendments to the project in a letter dated January 13, 2005; it would move the centralized dock to the north, use the least intrusive type of dock, and reduce the number of mooring sites from 50 to 25 and the number of units from 50 to 44. On January 18, 2005, the Board made a negative declaration for an environmental impact statement.
In February, the PAC received another letter from DNR supervisor Beck, expressing that his primary concern with the initial and revised platting of Lake Mary Villas was the proposed dock. He concluded that a dock would be unsuitable at the site. The PAC also received a letter from Douglas County Soil and Water Conservation District’s (SWCD’s) Jerry Haggenmiller informing it that the SWCD Board had unanimously recommended to the PAC that it deny any docking facility on the proposed plat of Lake Mary Villas.
At the March 1, 2005 PAC hearing, the CUP application failed by unanimous vote. On March 15, the Board approved the CUP with several conditions, including no dockage, and one week later, on March 22, the Board accepted “letters from Dean Beck, DNR, and Jerry Haggenmiller, SWCD, as the basis for the condition of no docks for Lake Mary Villas.” Relator challenges the no-dockage condition in its petition for a writ of certiorari.
D E C I S I O N
When reviewing a county board’s
decision on a writ of certiorari, “the court’s inquiry is limited to
questioning whether the board had jurisdiction, whether the proceedings were
fair and regular, and whether the board’s decision was unreasonable,
oppressive, arbitrary, fraudulent, without evidentiary support, or based on an
incorrect theory of law.” Radke v.
Relator argues that the no-dockage condition was arbitrary because: (1) the Board failed to explain its decision; (2) the unscientific and anecdotal comments from upset neighbors were inadequate to support the condition; and (3) the DNR fisheries supervisor’s letter is unscientific, vague, and overbroad.
We see no merit in relator’s
arguments that the Board failed to explain its decision or that it relied on
public comments. The Board expressly
stated that its decision was based on “letters from Dean Beck, DNR, and Jerry
Haggenmiller, SWCD.” The one-week delay
between the no-dockage decision and the statement that the letters supported the
decision is not fatal. Findings
supporting a decision must be contemporaneous to avoid post-hoc justification
for the decision, Hurrle v.
The reasonableness of the Board’s
decision is measured by “the legal sufficiency of and factual basis for the
reasons given.” Swanson v. City of
Beck’s letter targeted the dock as his primary concern. He expressly considered previous
correspondence regarding the Villas, the DNR response to the EAW, the
Haggenmiller’s letter expressed his opinion that natural buffers
should be in place adjacent to the wetlands and
Relator argues that these letters
are no better than the evidence rejected by this court in BECA, L.L.P. v.
As the basis for the Board’s decision to allow no dockage, these letters are sufficiently scientific and based on concrete personal observations. Accordingly, they were legally sufficient and the Board did not act arbitrarily when it relied on them to make its decision that the proposed dockage was not suitable for the site.
“The party seeking review on appeal has the burden of proving
that the agency has exceeded its statutory authority or jurisdiction.” Lolling
v. Midwest Patrol, 545 N.W.2d 372, 375 (
We see no merit in relator’s contention that the Board exceeded
its statutory authority by imposing the no-dockage condition.
The interpretation of an existing ordinance is a question of law
for the court. Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604,
[D]ocks and watercraft mooring areas must be centralized
and located in areas suitable for them. Evaluation
of suitability must include consideration of land scope, water depth,
vegetation, soils, depth to groundwater and bedrock, or other relevant
factors. The number of spaces provided
for continuous beaching, mooring, or docking of watercraft must not exceed one
for each allowable dwelling unit or site in the first tier (notwithstanding
existing mooring sites in an existing commercially used harbor). Mooring sites can be limited by the Planning
Advisory Commission and the
Relator’s argument that the Board’s action pursuant to the
ordinance was discriminatory is not accompanied by facts or legal
authority. The brief contains no
citation to the record showing the alleged disparate treatment. See
Relator argues that the prohibition
of docks offends the
There is no question that the no-dockage condition imposed by the
Board affected relator’s riparian rights.
Riparian rights include the right to build and maintain, for private or
public use, wharves, piers, and landings on the riparian land and extending
into the water. State v. Korrer, 127
Whether a taking has occurred is a question of law which this
court reviews de novo. Alevizos v. Metro. Airports Comm’n, 298
Unlike the cases relied on by relator, Dolan v. City of Tigard, 512 U.S. 374, 377, 114 S. Ct. 2309, 2312 (1994) (city conditioning approval of building permit on the dedication of a portion of the owner’s property for flood control and traffic improvements), and Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 828, 107 S. Ct. 3141, 3144 (1987) (commission requiring as condition to building permit that owners transfer easement across their beachfront property to public), the action taken by the Board does not require relator to transfer any rights to the County. It also does not prevent all reasonable use of the property. Relator continues to have alternative methods to access the lake and has stated that it could develop this property with single family residences with docks. Therefore, relator fails to present a basis for its taking claim.