This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).








Theodore Mellby, et al.,





Cass County,



Bryan Walker,




Filed April 3, 2007


Worke, Judge


Cass County Planning Commission



John H. Erickson, Erickson, Pearson & Aanes, 319 South Sixth Street, P.O. Box 525, Brainerd, MN 56401 (for relators)


Michael T. Rengel, Nicholas J. Heydt, Pemberton, Sorlie, Rufer & Kershner, P.L.L.P., 110 North Mill Street, P. O. Box 866, Fergus Falls, MN 56538 (for respondent Cass County Planning Commission)


William F. Mohrman, Gregory M. Erickson, Mohrman & Kaardal, P.A., 33 South Sixth Street, Suite 4100, Minneapolis, MN 55402 (for respondent Bryan Walker)


            Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

            In these consolidated land-use appeals, relators argue that (1) the county’s findings under the zoning ordinance are inadequate to allow review of the county’s grant of a preliminary conditional use permit and planned unit development; (2) the planning commission misunderstood aspects of the zoning ordinance, including misunderstanding it to preclude the exercise of discretion in addressing respondents’ various applications for permits and its calculation for development density; and (3) the county’s grant of the conditional use permit/public unit development, preliminary plat, and final plat were arbitrary and capricious and based on a misapplication of the relevant law.  We affirm.


            In October 2005, respondent Bryan Walker applied for a preliminary plat and a conditional use permit (CUP) to construct a planned unit development (PUD) for nine residential dwellings on the shore of Ten Mile Lake in Cass County

            In November 2005, respondent Cass County (planning commission) published notice of a public hearing on the preliminary plat application and conditional use permit.  See Cass County, Minn., Subdivision and Platting Ordinance § 4.01 (2004) (“A public hearing must be held for all proposed plats, and no plat shall be approved until after such public hearing.”).  The planning commission also mailed the notice to all property owners within one-half mile of the proposed PUD.  See id. § 4.04B (2004) (stating “Notice of time, place and purpose of the public hearing shall be given in the official [county] newspaper . . . at least ten (10) days before the hearing.  Written notice shall be sent to owners of record within one half (1/2) mile of the affected property . . . .”).   

            The planning commission reviewed the preliminary plat and made minor revisions that were addressed by the surveyor.  See id. § 4.02 (explaining procedure for pre-application meeting).  At the public hearing, the planning commission admitted into evidence twelve letters objecting to the PUD.  Further, numerous adjacent land owners appeared to voice their objections or raise questions regarding the PUD.  The planning commission was also advised that a petition for an Environmental Assessment Worksheet (EAW) had been filed directly with the Environmental Services Department (ESD).  However, ESD was unaware whether the petition had been filed with the Environmental Quality Board (EQB) as required under the rules.  Under the rules, petitions for an EAW are to be filed with the EQB, which then determines the responsible governmental unit and notifies them of the petition.  At the time of the hearing, the EQB had not notified the planning commission that it had received a petition and assigned it to the planning commission as the responsible governmental unit.  After hearing all objections and addressing questions, the planning commission addressed the criteria for evaluating the applications.  See Cass County, Minn., Land Use Ordinance § 1116.6-.11 (2005).  The planning commission concluded that the PUD met the standards set forth in the ordinance and approved the preliminary plat and CUP. 

            On December 27, 2005, the planning commission held a meeting and tabled approval of the final plat in order for the planning commission to determine the need for the preparation of an EAW as requested by a petition received by the EQB on December 27.  The planning commission met again on January 24, 2006, and determined that there was no need for the preparation of an EAW, addressed each of the concerns raised in the petition, and approved the final plat.   Relators Theodore Mellby, Susan Kadramas, Dan Kadramas, David Morris, Barbara Morris, Lois Schropp and Lois Group, L.L.C. filed writs of certiorari following the planning commission’s approval of the preliminary plat and CUP, and following its approval of the final plat. 


           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.


BECA of Alexandria, L.L.P. v. County of Douglas by Bd. of Comm’rs, 607 N.W.2d 459, 462 (Minn. App. 2000).  This court gives great deference to a county’s land use decision and will not overturn such decision unless there is no rational basis for them.  Id. at 463.  A county also has broad discretion in granting or denying a conditional use permit.  Id.  Further, a county’s decision to grant or deny a CUP is a quasi-judicial decision.  Sunrise Lake Ass’n v. Chisago County Bd. of Comm’rs, 633 N.W.2d 59, 61 (Minn. App. 2001).  The decision will be upheld unless it is unreasonable, arbitrary, or capricious.  Id.  “However, where a zoning ordinance authorizes a use by special permit, the denial of such a permit must be based on reasons of public health, safety, and general welfare or because of express language in the county’s land use plan.”  BECA, 607 N.W.2d at 463.

Judicial Review


            Relators argue that the planning commission offered no contemporaneous findings and no reflective conditions describing how conflicts were resolved and, therefore, the record is inadequate for judicial review.  Respondents contend that the findings are sufficient, or in the alternative, the detailed record maintained by the county is sufficient to uphold the decision to approve the applications and final plat.  The transcript of the November 22 meeting contains ample evidence to support the approval of the CUP and preliminary plat, including a detailed analysis of how the planning commission reached its decision.  During the meeting, the planning commission addressed the criteria for approving a CUP and preliminary plat contained in the land use ordinance.  Based on that analysis, the planning commission concluded that all of the requirements for issuance of the applications had been met.  Further, the planning commission made detailed findings in the January 24 meeting minutes regarding the concerns raised in the petition for an EAW.  Based on those findings, the planning commission determined that there was no need for the preparation of an EAW and approved the final plat.  The planning commission’s explanations in approving the CUP, preliminary plat, and final plat are sufficient for judicial review.

The decision-making was not arbitrary, capricious, or unreasonable


            Relators argue that the planning commission acted under a misconception of law by failing to recognize their power to act and make crucial decisions on these applications; therefore, the decision-making here is arbitrary, capricious, and unreasonable.  Respondents argue that a review of the transcripts in their entirety demonstrates that the planning commission understood its obligations under the law and concluded that denial of the applications would have been arbitrary and capricious because the planning commission could not identify any legitimate concerns that the applications would have posed to the general health, safety, and welfare of the residents of Ten Mile Lake.  We agree.

            Relators point to several comments made by the planning commission chairman showing that his actions were arbitrary and demonstrated his “whim.”  Specifically, relators cite the chairman’s statements that the planning commission is “designed to follow the issues,” and that “it’s not for this board to sit here and deviate from our ordinances.  Do I have sentiment about that?  Yes, I do.  Can I consider that?  No, I can’t.  . . . [W]e cannot deviate from what the ordinance says.”  These references, however, are easily misinterpreted due to the failure to consider the context of the discussion in its entirety.  The argument discussed at the time the chairman made these statements was in reference to a change to the ordinances rather than an application of the existing ordinances to the proposed PUD; specifically, that “a PUD is actually the [sic] contrary to the purposes of intent to our comprehensive land plan use in Cass County.”  Eventually, an unidentified speaker interrupted and stated, “I respect [relator Mellby’s] comments, but I think they would best be made to the county board.  The ordinance specifically allows for PUDs. . . . If the public and the citizens want to revisit PUDs, then the appropriate place is through the county board.”  The chairman’s statements cited by relators were the chairman’s attempt to explain that even if he agreed with relators’ argument, any discussion regarding modifications to the ordinances was not appropriate at the planning-commission meeting. 

            A review of the transcripts and meeting minutes from the November 22 and January 24 hearings shows that the planning commission was fully aware of its obligations under the ordinances, and it followed those ordinances in approving the CUP, preliminary plat, and final plat.  The planning commission made detailed findings and analysis regarding the fact that the PUD complied with the applicable ordinances.  Because the planning commission understood its obligations and has broad discretion in making quasi-judicial decisions regarding the applications, the decision-making was not arbitrary, capricious, or unreasonable.

Arbitrary, capricious or unreasonable, premised on an error of law, or lacking in evidentiary support


            Relators argue that the planning commission acted arbitrarily, capriciously, and unreasonably because there is no evidence to support its decision.  Respondents argue that it would have been arbitrary and capricious to deny the applications because they fully complied with the ordinance.

            With regard to the CUP and the preliminary plat approval, the planning commission addressed every standard under the land use ordinance and determined that the PUD complied with each of the criteria.  Based on that analysis, the planning commission approved the applications.  While the meeting minutes may be lacking details regarding the specific findings and analysis of the planning commission, those details and analysis are found in the meeting transcript.  Further, a simple statement by the planning commission that a certain criterion has been met is sufficient.  See Schwardt v. County of Watonwan, 656 N.W.2d 383, 389 (Minn. 2003) (“The board’s use of a checklist and the grant of the CUP was not arbitrary because the board received and considered all proffered evidence, gave both sides an opportunity to be heard, and the evidence is not so significant and one-sided as to render the approval arbitrary.”).  There is ample evidence that the PUD complies with all of the requirements under the ordinance. 

            Further, at the January 24 meeting regarding approval of the final plat, the planning commission determined that there was no need for the preparation of an EAW and addressed each of the concerns raised in the petition.  The first issue was that there was an inadequate storm-water plan.  The planning commission determined that the storm water plan met or exceeded all of the criteria of the Minnesota Pollution Control Agency according to the National Pollutant Discharge Elimination System storm water permitting process.  The planning commission also set forth the storm water plan in detail.  In addressing the second concern—that the developer had not provided a detailed plan and specifications with sufficient elevation data for septic tanks, lift station or forced main, sewer lines, drain fields and soils to evaluate the potential environmental harm—the planning commission found that a waste water treatment system site evaluation and design based on the applicable ordinance and state rule had been prepared by a licensed professional and submitted.  The third concern raised was whether propeller scouring in the dock area was likely to resuspend mercury and PCBs, further degrading the fishery and water quality of the lake.  After reviewing the relevant information, the planning commission found that the nine proposed boat slips would cause minimal effect on water quality and fisheries of the lake.  The planning commission also found that the fourth concern regarding the esthetics of the “wall of fortress appearance” of the development was recognized during the planning process with measures to minimize the visual impact of the proposed residences.  Finally, the petition raised concerns regarding the construction on unit lots 6-9 relating to the ground-water elevation and grading requirements.  The planning commission found that all footings would comply with separation of first floor elevation and water tables as required by the county, and that the lots were designed with walk-out basements which would limit the amount of excavation and use the natural contours of the property.  Also, standard and accepted erosion control measures would be used during construction.   

            Because the planning commission’s approval of the applications was based on ample evidence and the ordinances were correctly applied, the approval of the CUP, preliminary plat, and final plat were not arbitrary, capricious or unreasonable, premised on an error of law, or lacking in evidentiary support.