This opinion will be unpublished and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
Jeffrey Krapu and Andrea Krapu,
Filed June 27, 2006
Dakota County District Court
File No. C0-04-10310
Peter B. Tiede, Melanie P.
Persellin, Murnane Brandt,
Gerald S. Duffy, Jerrie M. Hayes, Siegel, Brill, Greupner, Duffy & Foster, P.A., Suite 1300, 100 Washington Avenue South, Minneapolis MN 55401-2151 (for respondents)
Considered and decided by Minge, Presiding Judge; Ross, Judge; and Collins, Judge.*
U N P U B L I S H E D O P I N I O N
Jeffrey and Andrea Krapu own
a 41-acre parcel in
Eureka Township Planning Commission conducted a public hearing to consider the Krapus’
permit application. The Krapus presented
their kennel plan and provided documentary support for their permit application. They gave the commission a letter from the
Members of the public voiced concerns about the Krapus’ kennel proposal. Some predicted traffic increase, kennel noise and odors, light pollution, a decrease in property values, and the destruction of scenic views. Opponents also complained about potential septic-system problems and the danger of escaping dogs. Neighbors presented the commission with two letters—one from a real-estate agent and one from a real-estate appraiser—opining generally that a dog kennel would reduce the resale value of neighboring property. After receiving public comment, the planning commission asked township attorney Peter Tiede about the application of the township’s zoning ordinance to the Krapus’ kennel proposal. The commission’s minutes indicate that Mr. Tiede advised the township that “[t]he proposed kennel is an activity in the agricultural zone.” He explained that the township’s zoning ordinance specifically regulates the licensing of kennels, opined that “[b]oarding of animals is permitted,” and confirmed that dog kennels are listed as a conditional use. After further discussion, the planning commission voted to recommend to the town board approval of the Krapus’ permit, pending compliance with septic system, ventilation, and noise abatement requirements. The planning commission recommended 17 permit conditions, including a buffer row of trees, noise containment, a fenced-in exercise area, an enclosed dumpster with at least weekly removal, leash requirements, and restricted operational hours. The Krapus have indicated that they would follow all of these conditions.
The town board met on September 27, 2004, and, despite the planning commission’s recommendation, voted to deny the Krapus’ application for the conditional use permit. The board issued findings in support of its denial. The findings regarded concerns about noise, traffic, the environment, aesthetics, and property values. The Krapus challenged the township’s decision in district court, filing a declaratory judgment action requesting the court to order the township to grant the conditional use permit. The district court decided cross-motions for summary judgment in the Krapus’ favor, directing the township to grant their permit. This appeal followed.
D E C I S I O N
The township contends that the district court erroneously granted summary judgment, overturning the township board’s decision to deny the Krapus’ application for a conditional use permit for the installation of a boarding kennel on their property. The Krapus counter that it was the township, not the district court, that erred, when the township rejected the zoning commission’s recommendation to approve the Krapus’ permit application. This appeal requires us to review the exercise of a local government’s discretionary authority to restrict a locally unpopular use of private land through the conditional use permitting process.
use permits are “flexibility devices” designed to accommodate situations in
which a land use that is generally compatible with the controlling zoning
classification raises challenges inherent in the use itself or creates special
problems because of the proposed location of the use. See
Zylka v. City of
will therefore uphold a decision to deny a conditional use permit unless our independent
review of the record convinces us that the decision was unreasonable,
arbitrary, or capricious. Schwardt v.
when the evidence presented at the hearing before the municipal governing body and the reviewing court establishes that the requested use is compatible with the basic use authorized within the particular zone and does not endanger the public health or safety or the general welfare of the area affected or the community as a whole.
Krapus’ land is zoned agricultural, and the township’s zoning ordinance lists
the conditionally permitted use of boarding animals as an agricultural activity
within that zone.
In granting a Conditional Use Permit, the Town Board shall consider the advice and recommendations of the Planning Commission and the effect of the proposed use upon the health, safety, morals, and general welfare of the occupants of surrounding lands; existing and anticipated traffic conditions including parking facilities on adjacent streets and land; the effect on values of property and scenic views in the surrounding area; and the effect of the proposed use on the Comprehensive Plan. In permitting a new conditional use or the alteration of an existing conditional use, the Planning Commission or Town Board may impose, in addition to those standards and requirements expressly specified by this Ordinance, additional conditions which they consider necessary to protect the best interest of the surrounding area or the community as a whole . . . .
township argues that a factually supported, legally sufficient basis exists to uphold
its decision to deny the conditional use permit. We do not agree. Our review of the denial reminds us of the
sensitivity required to balance a local government’s discretionary authority to
restrict landowners from engaging in a use conditionally allowed in the zoning
of the land.
been particularly sensitive in balancing the important governmental interests in flexible and comprehensive land use planning and the oft-times forgotten interests of the individual citizen in freedom from government interference in the use of his property and in fair and civil treatment by government officials.
Almquist v. Town of
We have carefully reviewed the record, and we conclude that most of the township’s 11 findings can be segregated into the following categories: supported (but not legally sufficient to deny the permit), speculative, and conclusory.
3 declares that “neighborhood opposition was significant to the Town Board’s
decision.” This finding is clearly
supported in the record. Although the
finding does not attempt to qualify or quantify the opposition, it is evident
to us from the record that many neighbors—we count 16—attended two public
hearings and voiced opposition to the Krapus’ application. We count only two who voiced support. The board properly credited what appears to
be the good-faith opposition of neighbors as one factor in denying the
permit. But neighborhood opposition
alone is not a legally sufficient reason to deny a conditional use permit. Barton
Contracting Co. v. City of
Several of the township’s findings appear merely to rest on the underlying concerns raised by the opposing neighbors. On one hand, the township admits that “generalized or unsupported neighborhood opposition does not by itself provide a legally sufficient reason for denying a conditional use permit.” But on the other, the township sharply criticizes the district court’s reference to the township’s lack of “a concrete factual basis in the record” and “insufficient causal connection” as the reason for granting the Krapus summary judgment. The township overlooks Yang, where this court clarified that “[a] city may consider neighborhood opposition only if based on concrete information” and reversed the county’s denial of a conditional use permit where “the [county’s] findings do not establish a causal link” between the fact asserted and the finding it purportedly supports. 660 N.W.2d at 833-34. The concerns that the opposing neighbors raised here are chiefly anecdotal and only speculate that a kennel might result in such things as intolerable noise, environmental pollution, increased traffic, and the blemishing of aesthetic views. Three of the townships findings—4, 5, and 11—appear merely to echo these speculative concerns.
number 4 declares that unidentified “evidence . . . shows that environmental concerns exist,” but it points to no evidence
that the Krapus’ kennel will actually create any actual environmental problem. (Emphasis added.) That “environmental concerns exist” is true,
as far as it goes; neighbors in fact said
that they had “concerns” about the
kennel’s potential impact on the local environment. But neighborhood concern is not enough. The township points to testimony from a
member of the Joint Sewer Board governing the wastewater treatment system that,
given the existence of fecal coliform in dog feces, the township’s “priority
would be not to allow this type of facility that close to the [Vermilion]
River.” But the record shows that the
kennel would be built with a code-compliant septic system and a tiled drain
system to route liquid waste safely, and the township has not challenged that
the proposed double-bagging of fecal waste would adequately address the hypothetical
pollution concerns. Further, the
township Finding 5 indicated that another factor contributing to the
denial was “transportation safety,” and it declared that additional traffic “is
a safety concern.” Again, several
neighbors did speak of “concerns” about potential traffic increases that they
believe will result from the Krapus’ proposed kennel. But the township’s finding that the burden on
a shared driveway and the excessive car traffic and customer trips would create
safety hazards simply lacks any “concrete,” or real, support in the
record. We find instructive the supreme
court’s analysis in Minnetonka
Congregation of Jehovah’s Witnesses, Inc. v. Svee, 303 Minn. 79, 226 N.W.2d
306 (1975) In Svee, the supreme court considered whether a city properly denied
the landowner a conditional use permit to construct a
Here, although residents expressed concern about additional traffic burdens
and speculated about hazardous traffic conditions, they provided no actual evidence,
such as traffic studies, to substantiate that any real hazards would likely result
from increased traffic. In Yang, we rejected a county board’s
conclusion that a proposed use would create excessive traffic because the
conclusion rested on neighbors’ personal observations of increased vehicular
traffic from the use. 660 N.W.2d at 834. We explained that “the neighbors’ anecdotal
comments contain no detail as to how the cars they witnessed might affect
circulation or the general welfare, and are insufficiently concrete to
substantiate a finding that the proposed [custom slaughterhouse] would create
Finding 11 suffers from the same infirmity. It declares that “runoff from parking lots was not addressed by” the Krapus, and it concludes that this expected runoff “was a concern for surface water, drainage and erosion issues.” (Emphasis added.) Our review of the record leaves us unsurprised that potential parking lot runoff “was not addressed” by the Krapus. Nothing in the record cited by the township indicates that there was sufficient factual support to elevate this concern above speculation. The township’s denial cannot rest on this speculative finding.
The township’s resolution also includes several sweeping, conclusory findings, to which the township should have ascribed no value because they also lack sufficient factual support. See id. (rejecting a finding of excessive “intensity” created by a proposed slaughterhouse where the board did not define “intensity” or substantiate the finding with evidence). Without explanation, Finding 1 declares that the Krapus’ kennel would be “too intensive” and “too commercial.” Finding 2 declares simply that the kennel’s proposed “proximity” to neighbors makes its location “inappropriate.” Finding 6 declares without elaboration that because the township has a growing residential population, the kennel is “not an appropriate land use.” Finding 10 summarily declares that the “health, safety and general welfare” of the neighboring land would be “negatively affected by the proposed kennel.” The township does not define or explain the terms “too commercial,” “too intensive,” “inappropriate,” and “not an appropriate land use.” And we understand the finding of predicted negative impact on the “health, safety and general welfare” to be a mere synopsis of the other findings—with no more or less weight than they have. None of these unsubstantiated, conclusory declarations is a basis for the township to deny the Krapus’ permit application. See C. R. Inv., Inc. v. Village of Shoreview, 304 N.W.2d 320, 328 (Minn. 1981) (holding that the requirement that a proposed use be an “improvement” to the city’s comprehensive plan is “unreasonably vague and subjective” and “cannot be viewed as bearing a substantial relationship to the public health, safety, and welfare of the community and thus [cannot] furnish grounds for denial of a special use permit”); see also Honn, 313 N.W.2d at 416 (concluding that a county board denying a conditional-use-permit application must state its reasons “in more than just a conclusory fashion”).
township also found that “noise would be a nuisance,” that “property values
would be negatively affected,” and that the kennel would have a “negative
effect on scenic views for both neighbors and others in the township.” But again, a municipality must base the
denial of a conditional use permit on “something more concrete than
neighborhood opposition and expression of concern for public safety.” Chanhassen Estates Residents Ass’n v. City
of Chanhassen, 342 N.W.2d 335, 340 (
Regarding the noise-would-be-a-nuisance finding, the township points us to “information presented by Mr. Odom, Mr. Ruzicka and the videotaped recording of the 11-dog kennel.” This information does not support the finding. Milton Odem, the representative of the kennel designer that the Krapus hired, discussed the effect of the proposed insulation and stated that “[b]eyond 200 feet you are more likely to hear the birds and crickets or car traffic [on a clear night] than the dogs inside a well-insulated building.” Rick Ruzicka, the owner of Animal Control Incorporated, told the planning commission similarly that noise from inside a kennel “can be heard 100 feet away.” But it does not appear that Ruzicka considered how the Krapus’ planned insulation might control sound. The township insists that a videotape presented to the board “clearly exhibited that the noise heard from the barking inside and outside the kennel was very loud and could be heard more than 100 feet away.” The videotape presented by one of the opposing neighbors was recorded much closer than 100 feet from a kennel, and the township did not correlate the insulation and construction of the videotaped facility with that of the Krapus’ proposed facility. The videotape therefore lacks the causal connection to the finding required by Yang. The only evidence concerning a materially similar kennel appears to be a letter from Dr. Patrick Grogan, who has a 50-dog kennel built by the same designer engaged by the Krapus. Dr. Grogan explained that his kennel stands within 100 feet of residential property, that barking is “barely audible” outside the building, and that in the four years since its completion the kennel has “never had a complaint about barking dogs.” And even if the evidence the township relies on might demonstrate audible barking at 100 feet, the township does not contest the Krapus’ assertion that the closest neighbor to their kennel’s site would be 540 feet away.
township points to the letter opinions of a real-estate agent and a real-estate
appraiser as support for its finding that the kennel would devalue neighboring
property. The agent’s opinion rests on error
and speculation. She asserts that
The appraiser’s opinion is similarly speculative. The letter admits no ability to quantify any amount of “loss” in neighboring property values from the proposed kennel, but it identifies the “causes” of the predicted, unspecified loss expressly: “noise, traffic, smell, and proximity to retail/service business.” The unsubstantiated (and in some cases rebutted) “concerns” about noise, traffic, and odor can no more support the appraiser’s opinion than they can by themselves support a finding of impairment to local welfare. The township points us to nothing in the record or in the appraiser’s opinion to explain any relationship between the mere existence of a service business and depreciated land value. The township urges this court not to weigh the credibility of this evidence and to defer to the considered judgment of the expert, despite the lack of support for his opinion. We do not reweigh this evidence, but we follow our charge to consider whether the findings are supported by evidence. Hubbard, 323 N.W.2d at 763. An expert’s opinion enjoys no presumption of deference, particularly when, as here, it lacks record support. Cf. BBY Investors v. City of Maplewood, 467 N.W.2d 631, 635 (Minn. App. 1991) (holding that a city considering a conditional-use-permit application may rebut expert testimony with nonexpert testimony), review denied (Minn. May 23, 1991). Inasmuch as the township cannot rest its findings on neighborhood opposition that, in turn, rests on unsubstantiated concerns, neither can it rest them on expert opinions that also rest on the same unsubstantiated concerns.
board’s finding that the kennel would have a negative impact on scenic views
cannot provide a legally sufficient reason for permit denial. True, one or more neighbors said they oppose
the kennel because they prefer the current scenery. But the township does not explain how scenic
views actually will be negatively affected.
Under the zoning ordinance, landowners may as a matter of right construct
farm buildings, accessory structures, or single-family homes.
Separately dispositive, the township’s findings failed to discuss the 17 proposed permit conditions (to which the Krapus agreed) that would mitigate the kennel’s alleged adverse impact. See Scott County Lumber Co. v. City of Shakopee, 417 N.W.2d 721, 728 (Minn. App. 1988) (holding that city’s denial of a conditional use permit to a lumber company to operate a gravel pit was not supported by legally sufficient reasons when the permit carried numerous conditions to alleviate dust, noise, and traffic problems), review denied (Minn. Mar. 23, 1988).
township now also asserts that its permit denial was supported by the terms of
the comprehensive plan. It is true that
incompatibility with the comprehensive plan is a legally sufficient reason for denying
a conditional use permit. See Hubbard Broad., 323 N.W.2d at
763. But the township’s findings do not
indicate that it considers the kennel to be inconsistent with the comprehensive
plan. See Picha v. County of McCleod, 634 N.W.2d 739, 742 (
Despite the township’s attempt to recast speculative neighbor concerns into legal bases for denying the Krapus’ conditional use permit, this case ultimately reduces to a contest between landowners and neighbors. The landowners want to enjoy the use of their property in a manner that happens to fall within the zoning scheme, but in a manner inconsistent with the preferences of several of their neighbors. Stripped to their essence, the township’s findings are unsupported and do not provide the township with a rational basis to deny the permit. The district court carefully and appropriately analyzed the township’s decision and concluded that the township wrongly decided the Krapus’ application.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.