This opinion will be unpublished and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
Ricky Lee Edling, et al.,
Isanti County, et al.,
Filed July 3, 2006
Dissenting, Minge, Judge
Edward J. Laubach, Jr., Christopher W. Harmoning, Heather I. Olson, Gray, Plant, Mooty, Mooty & Bennett, P.A., 1010 West St. Germain, Suite 600, St. Cloud, MN 56301 (for relators)
Thomas P. Carlson, Nigel H. Mendez, Carlson & Soldo, P.L.L.P., 1052 Centerville Circle, Vadnais Heights, MN 55127; and
Edblad, Isanti County Attorney,
Considered and decided by Halbrooks, Presiding Judge; Kalitowski, Judge; and Minge, Judge.
U N P U B L I S H E D O P I N I O N
In this certiorari appeal, relators argue that the county’s revocation of a conditional-use permit was defective because the county failed to make adequate findings supported by the record and because the relators were denied due process of law. We affirm.
Relator Ricky Lee Edling applied for a conditional-use
permit (CUP) from the Isanti County Planning Commission for certain property
Edling’s application for a CUP came before the planning commission on January 14, 1999. In response to Mueller’s concerns, the commission tabled action on the permit application until after the meeting between Edling, the zoning office, and the DNR. The issue was again before the planning commission on February 11, 1999. The minutes from the meeting reveal that
Mr. Edling would like to dig ponds on his property and mine the black dirt. This request was at the last meeting and Mike Mueller, DNR, had some concerns with the depth of the ponds and the total area to be used. Mike Mueller and Joe Basta [Isanti County Zoning Administrator] met out on the site with Mr. Edling and reviewed the project. The ponds will be under 10’ deep and Mr. Edling will be using less than 40 acres total. After the site visit, Mike Mueller does not have a problem with this request.
The planning commission then approved the CUP application subject to the conditions that there would not be any filling of wetlands and that all spoil would go on the high ground.
Relator Universal Enterprises of Mid-Minnesota Inc. entered into a five-year lease and gravel-mining agreement with Edling on May 30, 2005. The agreement granted Universal the exclusive right to mine and remove gravel from Edling’s property.
After mining began, neighbors complained to the county about noise and dust coming from the area. On June 7, 2005, Holly Nelson, Isanti County Zoning Office Compliance Technician, sent Edling a letter stating that Edling’s CUP was granted to mine black dirt from his ponds and that an additional CUP would be required “to mine any gravel, crush or have it leave the site.” Edling responded by letter, noting that he was granted a CUP for the mining of minerals, sand, gravel, peat, and black dirt and that he believed that he was following the CUP conditions.
Both Nelson and the Chief Deputy Isanti County Attorney subsequently visited the site, observed a large-scale mining operation, and concluded that there were numerous problems with it, including “noise, dust, hours of operation, safety, location and impact upon the roads and environment.” In a letter dated June 30, 2005, the Isanti county attorney’s office informed Edling that the CUP was granted with “the paucity of conditions” due to Edling’s representations to the planning commission during the CUP application process. The letter noted that Edling had assured the planning commission that he was going to dig a few ponds on his property and that they would not be more than 10 feet deep. The chief deputy county attorney advised Edling that the site had become a nuisance and that an EAW was required because of the nature and scope of the operation.
The county received approximately 65 written complaints from Edling’s neighbors. On July 15, 2005, Nelson conducted a second site inspection. She observed three large mining pits with depths exceeding 35 feet and several piles of sand and gravel more than 50 feet high. There were large trucks hauling materials and a substantial amount of associated dust and noise. On July 26, 2005, a Minnesota Pollution Control inspector visited Edling’s property. The inspector noted that a Minnesota Pollution Control Agency permit and storm-water-prevention plan was required before starting an operation of its size and found numerous violations concerning the operation of the site activity. The Isanti county attorney’s office sent Edling a letter, informing him that a public hearing had been scheduled regarding the revocation of his CUP and urging him to consult an attorney. A subsequent letter to Edling from the Isanti county attorney’s office indicated that the hearing was to be held on July 28, 2005, and stated that if Edling needed additional time to prepare for the hearing he should contact the chief deputy county attorney. After Edling contacted the Isanti county attorney’s office, the hearing was rescheduled for August 3, 2005. Edling appeared at the hearing with counsel. The Isanti County Board of Commissioners voted to revoke his CUP. This appeal follows.
D E C I S I O N
1. County’s Findings
Relators argue that the county’s reasons for revoking the CUP are insufficient and lack a factual basis. 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.
v. St. Louis County Bd., 558 N.W.2d 282, 284 (
The county board revoked Edling’s CUP based on the following findings: (1) “Edling’s use of the property is far outside the scope of the CUP”; (2) based on the “change[s] in the nature and scope of the operation, an EAW is now required . . . to assess the [operation’s] potential environmental impact”; and (3) “because of the expansion of the project and the lack of any precautions, the site is a public nuisance.”
The county granted the CUP based on Edling’s representations that he would be mining black dirt from ponds that would not exceed a depth of 10 feet. Absent these representations, the county and the DNR would have required an EAW and different conditions likely would have been placed on the CUP, as evidenced by Mueller’s initial response to the CUP application. Mueller’s assessment of the situation changed because Edling represented that the ponds would not be deeper than 10 feet and because Edling scaled the proposed operation down from 114 acres to 40 acres. Relying on Edling’s representations, Mueller informed the county that the revised proposal did not require an EAW.
EAW is required when the proposed project “will excavate 40 or more acres of
land to a mean depth of ten feet or more during its existence.”
change or diminish the course, current, or cross-section of 40 percent or more of five or more acres of types 3 through 8 wetland of 2.5 acres or more, excluding protected wetlands, if any part of the wetland is within a shoreland area, [or] delineated flood plain.
also contend that the county’s finding that the operation was a public nuisance
lacks any evidentiary support. “Whoever
by an act or failure to perform a legal duty intentionally . . . maintains
or permits a condition which unreasonably annoys, injures or endangers the
safety, health, morals, comfort, or repose of any considerable number of
members of the public” is guilty of maintaining a public nuisance.
argue that the record is “devoid of evidentiary support for the application of
objective standards used in determining whether the mining operations have
become a nuisance.” The wrongful conduct
resulting in creation of a nuisance may be intentional conduct, but can also be
“negligence, ultrahazardous activity, violation of a statute or some other
tortious activity.” Highview N. Apartments v.
is evidence in the record that approximately 65 neighbors claimed that they
have been negatively affected by the operation’s noise, dust, and traffic. It is appropriate to consider neighborhood
opposition to zoning requests. Swanson v. City of
Here, many of the neighbors’ concerns were neither generalized nor unsupported. Opposition was based on the apparent danger the mining operation created because of a lack of fencing around the large pits, excessive dust, and traffic concerns. The validity of the complaints was verified by the county officials who conducted site inspections. We conclude that the record contains sufficient support for the county’s determination that Edling’s current operation is a public nuisance.
2. Due Process
argue that they were denied their substantive due-process rights. To show such a violation, relators must establish
that they suffered a “deprivation of a protectible property interest”
attributable to “an abuse of governmental power sufficient to state a
also claims that he was deprived of reasonable notice of the revocation hearing
and that the county’s notice did not comply with the Minnesota Rules of Civil
Procedure. “[Q]uasi-judicial proceedings
do not invoke the full panoply of procedures required in regular judicial
proceedings.” Barton Contracting Co. v. City of
proceedings of a governing body do not require the typical procedures of
MINGE, Judge (dissenting)
respectfully dissent. The conditional
use permit (CUP) issued by
The majority takes the position that the application process for the CUP defines the scope of the CUP as issued and that in this case Edling’s application and statements provide a sufficient basis to support the County’s decision to revoke. At the outset, I agree that the County has a responsibility to avoid environmental degradation, that sharp practices that compromise wetlands and create nuisances should not be condoned, and that this court should defer to the counties when such abuses occur. However, the record does not support a finding of such abuses. In fact, the county does not claim fraudulent misrepresentation. At most, we have a sparse record.
proposition that the representations by the land owner confine or become an
implied condition of a CUP is not found in the statutes or a reported decision in
this state. In
this proceeding there were four alleged violations that were the basis for
revoking the CUP. The first was that
Edling was doing far more than “mining” black dirt and creating ponds. In fact, Edling never limited his proposed
activity to dirt removal.
there was a dispute over the depth of the areas being mined. This is important for two reasons. If the mean depth is greater than 10 feet, an
Environmental Assessment Worksheet (EAW) would be required and issuance of the
CUP would have been delayed. See Minn. R. 4410.4300, subp.12(B)
(2005). Also, there is a claim that
Edling represented that he would not excavate below a maximum depth of 10 feet
regardless of an EAW. The County’s
compliance technician visited the site after the controversy arose and
estimated that some areas of excavation exceeded 30 feet deep. However, there is no evidence that the mean
depth is 10 feet or greater. The
Third, there is an allegation that the gravel operation is compromising wetlands and requires an EAW. There is nothing in this record indicating that Edling is compromising any wetland in violation of any statute, regulation or ordinance.
there is evidence of neighbors objecting to dust, noise, and traffic from the
gravel operation. I do not disagree that
the county can regulate gravel operations to deal with such problems and
ultimately revoke a CUP if regulations are violated. However, a revocation of a CUP without any
standards, evidence of prior notice of standards, or evidence of failure to
comply with standards violates due process.
See Mathews v. Eldridge, 424