This opinion will be unpublished and

may not be cited except as provided by

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






In the Matter of Clayton & Theresa Skretvedt's

Application for Preliminary Plat Approval


Filed August 15, 2006

Reversed and remanded

Minge, Judge


Morrison County Board of Commissioners



Gerald W. Von Korff, Rinke-Noonan, P.O. Box 1497, St. Cloud, MN 56302 (for relators Skretvedt, Porwoll and Stradtman)


Michael J. Ford, John H. Wenker, Quinlivan & Hughes, P.A., P.O. Box 1008, St. Cloud, MN 56302 (for respondent Morrison County)


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

U N P U B L I S H E D  O P I N I O N

MINGE, Judge

            Relators appeal the denial of their preliminary plat application.  Because the plat proposed a permitted use and complied with the land use control ordinance and because the principles in the comprehensive plan that were relied upon by the Morrison County Board of Commissioners were not actual limits on use, the Board’s denial for incompatibility of land uses and violation of the comprehensive plan was arbitrary and capricious.  We reverse and remand to the Board for approval of the preliminary plat.


            Relators Clayton and Theresa Skretvedt, Richard and Mary Porwoll, and Weston Stradtman bring this certiorari appeal from the Morrison County Board of Commissioners’ (Board) denial of their preliminary plat application.  On September 26, 2005, the Morrison County Planning Commission (Commission) considered relators’ application at a public hearing.  After a presentation of the application and testimony from neighbors, the Commission voted to deny approval of the preliminary plat.  On October 4, 2005, the Board considered the Commission’s recommendation, adopted the Commission’s findings, and denied the application.  Relators challenge this determination.

            Relators Skretvedt and Porwoll own an 84-acre tract of land in Bellevue Township and relator Stradtman is the developer of “Lhotka’s Woods,” a subdivision consisting of 15 single family home sites, five acres or more in size.  The property is located approximately three-quarters of a mile from U.S. Highway 10, and is zoned AG (agricultural).  The county land use ordinance permits single-family residences on five acres in an AG zone.  Morrison County, Minn., Land Use Control Ordinance §§ 701.1, 801 (1995).  The purpose of the AG zone is “to promote and protect areas which have high quality agricultural lands and are essentially rural in nature. Within this district agricultural activities shall be given precedence over other land uses.”  Id. § 602.2 (1995).

            The relators’ property is not currently used for agricultural endeavors; rather, it is a pine grove.  However, the property is located adjacent to a number of active agricultural enterprises.  A large poultry operation is approximately one-half mile away.  Nearby is a potato farm, which uses an early morning aerial-spraying during the growing season, and operates a comprehensive irrigation system with numerous center pivots.  Of the 22 property owners notified of the proposed development, two came to testify at the public hearing, as did the Bellevue Township chairman.  Each speaker opposed the preliminary plat, citing the agricultural operations and other incompatible adjacent land uses.  However, a planner suggested that a covenant be written into the subdivision agreement that acknowledges the nearby sights and sounds of agriculture, thereby limiting complaints of future residents.

            The Commission voted to deny the preliminary plat because members felt that the application was not in conformity with the goals or spirit of the comprehensive plan and would be an incompatible use.  The Board considered the application at its next meeting and adopted the findings of the Commission.  This certiorari appeal followed.


            The issue in this case is whether the Board arbitrarily and capriciously denied relators’ application for preliminary plat approval where the plat application proposed a permitted use.  “A court issues a writ of certiorari ‘to review the proceedings of a tribunal exercising judicial or quasi-judicial functions.’”  In re Application of Merritt, 537 N.W.2d 289, 290 (Minn. App. 1995) (quoting Honn v. City of Coon Rapids, 313 N.W.2d 409, 414 (Minn. 1981)).  Decisions regarding applications for preliminary plat approval are quasi-judicial.  West Circle Props. LLC v. Hall, 634 N.W.2d 238, 241 (Minn. App. 2001), review denied (Minn. Dec. 19, 2001).  On writ of certiorari, our review “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.”  BECA of Alexandria, L.L.P. v. County of Douglas ex rel. Bd. of Comm’rs, 607 N.W.2d 459, 462 (Minn. App. 2000) (quotation omitted).

            Local land use decisions must have a rational basis.  Id. at 463.  If at least one reason given for denial satisfies the rational-basis test then the denial of a land use decision is not arbitrary.  Trisko v. City of Waite Park, 566 N.W.2d 349, 352 (Minn. App. 1997), review denied (Minn. Sept. 25, 1997).  But a municipality may not base its denial on “unreasonably vague or unreasonably subjective” standards.  Id. at 353 (quotation omitted).  Moreover, “[i]f an entity’s zoning ordinances specify standards to which a proposed plat must conform, it is arbitrary as a matter of law to deny approval of a plat which complies in all respects with the ordinances.”  Hurrle v. County of Sherburne ex rel. Bd. of Comm’rs, 594 N.W.2d 246, 250 (Minn. App. 1999) (quotation omitted); see also PTL, LLC v. Chisago County Bd. of Comm’rs, 656 N.W.2d 567, 571 (Minn. App. 2003) (stating that “[u]nder Minnesota law, when an ordinance specifies minimum standards to which subdivisions must conform, local officials lack discretionary authority to deny approval of a preliminary plat that meets those standards”).

I.  Role of the Comprehensive Plan and Official Controls

            The comprehensive plan contains objectives, policies, standards, and programs to guide public and private land use.  Minn. Stat. § 473.859, subd. 1 (2004).  Zoning ordinances execute the policies and goals of the comprehensive plan.  See Minn. Stat. § 462.357, subd. 1 (2004).  A municipality should not adopt zoning in conflict with its comprehensive plan, and a zoning ordinance that conflicts with a comprehensive plan should be amended.  Minn. Stat. § 473.865, subds. 2, 3 (2004).  The Minnesota Supreme Court has characterized this as “the statutory priority of comprehensive plans over zoning ordinances.”  Mendota Golf, LLP v. City of Mendota Heights, 708 N.W.2d 162, 174 (Minn. 2006).

            The Morrison County Comprehensive Plan acknowledges that Morrison County will experience development and notes that “there is a need to ensure that this development is compatible with adjacent land uses.”  Morrison County, Minn., Comprehensive Plan, at IV, F.1.a (1989).   The comprehensive plan also outlines a number of planning goals, including that “[c]ompatible land uses shall be encouraged to avoid scattered, strip or spot development,” id., at IV, F, 2, d (1989), and that the orderly development of urban areas is encouraged so that agricultural uses are not unnecessarily restricted, id., at IV, F, 2, k (1989).  Finally, the comprehensive plan suggests that official controls should protect agriculture as a viable activity and should separate incompatible land uses.  Id., at IV, F, 3, b and c (1989).

Morrison County’s Land Use Control Ordinance implements the comprehensive plan and divides land within the county into various zoning districts, outlining the types of uses in each zone.  Morrison County, Minn., Land Use Control Ordinance §§ 601, 801 (1995).  According to the ordinance, a use may be permitted, permitted with performance standards, permitted as a conditional use, or allowed without a permit.  Id. § 801.  Single-family residences are a allowed use under the ordinance in most zoning districts.  See id.  In addition, permitted uses must conform to certain dimensional standards.  Id.   § 701.1.  In a zoning district identified as AG, each single-family lot must consist of a minimum of five acres, measure 200 feet in width, and have a maximum 15% impervious lot surface.  Id.

II.  Bases for Denial of Preliminary Plat

            Minnesota courts have addressed the difference between permitted uses and other uses, such as conditional uses, and the scope of the local government’s authority and discretion when considering permitted uses.  The supreme court has stated,

[W]hen a city designates a specific use as permissible in a particular zone or district, the city has exercised its discretion and determined that the permitted use is consistent with the public health, safety, and general welfare and consonant with the goals of its comprehensive plan.  Until the district is rezoned or the zoning ordinance is either amended or successfully challenged, that determination is conclusive.

Chanhassen Estates Residents Ass’n v. City of Chanhassen, 342 N.W.2d 335, 340 (Minn. 1984).  Conversely, “[a] conditional or special use permit may be denied for reasons relating to public health, safety, and general welfare” because the governmental entity has reserved for itself the discretion to assess the application on those bases.  Id.  In addition, a municipality may rely on a comprehensive plan to deny a request for rezoning.  Concept Props., LLP v. City of Minnetrista, 694 N.W.2d 804, 818 (Minn. App. 2005), review denied (Minn. July 19, 2005).  These discretionary acts must be distinguished from the more ministerial review of a permitted-use application.

When it comes to reviewing an application for a permitted use, the local government’s review is limited to determining whether the application conforms to the technical requirements of the ordinance, including whether the preliminary plat has the correct setbacks and open-space requirements.  Chanhassen Estates, 342 N.W.2d at 340 (stating that “review of an application for a permitted use need go only to the applicant’s compliance with the specific” standards and requirements of the ordinance).  “Subject to such compliance, approval of a permitted use follows as a matter of right.”  Chase v. City of Minneapolis, 401 N.W.2d 408, 412 (Minn. App. 1987) (quotation omitted).         

            This court has considered a case with remarkably similar facts.  See PTL, 656 N.W.2d at 569-70.  In PTL, the Chisago County Board of Commissioners considered an application for preliminary plat for five-acre lots for single-family residences located in a district zoned agricultural.  Id. at 569.  Both the Chisago County Planning Commission and Board of Commissioners denied approval for PTL’s preliminary plat, finding that the preliminary plat was inconsistent with surrounding land uses, negatively impacted surrounding communities, and failed to implement the comprehensive plan.  Id. at 570.  This court reviewed the board’s decision to determine whether the denial was legally sufficient, where the preliminary plat proposed a permitted use, and whether the comprehensive plan provided an independent basis for denying plat approval where the plat complied with the technical requirements of the ordinance.  Id. at 571.

            In PTL, we reversed the board’s decision, holding that the board exceeded its authority in denying PTL’s application for preliminary plat approval because it proposed a permitted use that conformed to all regulatory standards.  Id. at 573.  Because the sections of the ordinances relied upon by the board were mere statements of purpose,[1] they were legally insufficient bases upon which to deny the plat.  Id. at 572.  We also considered whether the comprehensive plan provided an independent basis upon which a denial may rest.  Id. at 573.  Because the comprehensive plan is a guide, not an ordinance; because even if the comprehensive plan had regulatory effect, its general provisions are too vague to form the basis of a legally sufficient denial; and because the board had already exercised its discretion in implementing the comprehensive plan with the zoning and subdivision ordinances, we reversed and remanded.  Id. at 573-76.

            Here, the record indicates that the preliminary plat conformed to the technical requirements of the land use and subdivision ordinances.  The reasons for denying approval are similar to those found to be insufficient as a matter of law in PTL.  The Board denied relators’ preliminary plat for four reasons: the proposed plat was not in harmony with the intent of the comprehensive plan, it constituted “spot development,” it was in conflict with surrounding land uses, and it was not supported by the Bellevue Town Board.  At oral argument the county noted that it no longer considers the development to constitute spot development.  Therefore, we only consider the other three bases for denial.

            First, with respect to the intent of the comprehensive plan, we note that the subdivision regulations are intended to provide for development of land within the county’s comprehensive plan.  The plan is more general; it promotes the health, safety, and general welfare of the county’s inhabitants.  Such language does not give the comprehensive plan regulatory effect such that it may be a basis for preliminary plat denial.  See id. at 574-76.  Its goals and policies are too vague and subjective to provide an objective, rational basis for denial or for review.  Here, the record indicates that the Board was advised that it could deny the plat even though it complied with the zoning standards if it believed the plat did not contribute to the general health, welfare, and good of the community.  This reliance on the comprehensive plan is too vague and subjective and not an acceptable basis for rejecting a permitted use.

            The second basis for denial is that relators’ residential development conflicts with the surrounding agricultural use.  The record indicates that there was a large poultry operation one-half mile away.  However, the Morrison County ordinance requires that residential developments be set back from such “feedlot” activity and relators’ plat met that setback requirement.  Morrison County, Minn., Land Use Control Ordinance § 701.4 (1995).  Absent anything in the record to indicate that that setback is inadequate, the poultry operation is not a basis for rejecting the plat.  Aerial spraying and irrigation equipment were also cited as further evidence of incompatibility.  However, the record does not indicate the frequency or offensiveness of the activity.  Although direct incompatibility could be a basis for rejecting permitted uses on adjacent parcels, standards and evidence of the extent of the conflict are needed to support such a determination.  Otherwise, it can be a convenient basis for arbitrarily denying a permitted use.

            Finally, the Board considered the opposition of the township.  Although certainly of interest, in this appeal the Board does not claim that the position of the township constitutes an adequate, independent basis for denial of plat approval.  The record indicates that the county attorney recognized this in advising the Board at an earlier meeting. 

            The court recognizes that by law the county board has authority to regulate land use by its zoning ordinance.  See Minn. Stat. § 394.21, subd. 1 (2004); Minn. Stat. § 394.24 (2004).  This decision does not constrain the authority of the Board to modify its zoning or require conditional use permits if the Board concludes that current zoning allows incompatible uses or is in conflict with the comprehensive plan.  See Mendota Golf, 708 N.W.2d at 175.  Although the supreme court noted the “statutory priority of comprehensive plans over zoning ordinances,” where the zoning ordinances and the comprehensive plan conflict, the local government should resolve the conflict through its legislative process.  See Minn. Stat. § 473.858, subd. 1 (2004); Mendota Golf, 708 N.W.2d at 174-75.  As the PTL court recognized,

We are mindful of the demands of land-use management.  It is certainly proper for the board of commissioners to consider aesthetics, historical uses of the land, and the public cost of providing services for a given land use.  But these considerations must be reflected with sufficient specificity in the land-use ordinances.  This decision does not preclude future revision of the zoning and subdivision ordinances to address these considerations.

PTL, 656 N.W.2d at 575-76 (emphasis added).

            In sum, we conclude the Board’s denial of the plat lacks a rational basis and is arbitrary and capricious, and we therefore reverse the decision of the Board and remand with an order to approve relators’ preliminary plat.

            Reversed and remanded.

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

[1] The PTL opinion is limited to permitted uses, but the opinion does recognize that statements of purpose, as well as provisions of the comprehensive plan, are permissible bases for denial where the board has greater discretion, such as when the board considers applications for rezoning or conditional use permits.  Id. at 573-74.