This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C9-95-2429

In the matter of Buffalo Bituminous's Petition for a
Conditional Use Permit for a Sand and Gravel
Mining Operation and a Hot-Mix Asphalt Plant
in Monticello Township.

Filed July 2, 1996

Affirmed
Davies, Judge

Wright County Planning Commission

Brian Bates, 1985 Grand Ave., St. Paul, MN 55105 (for relator Citizens Against the Pit)
Charles K. Dayton, Leonard, Street and Deinard, P.A., Suite 2300, 150 S. Fifth St., Minneapolis, MN 55402 (for respondent Buffalo Bituminous, Inc.)

Wyman A. Nelson, Wright County Attorney, Thomas C. Zins, Assistant Wright County Attorney, Wright County Government Center, 10 Second St. N.W., Room 150, Buffalo, MN 55313-1189 (for respondent Wright County and the Wright County Planning Commission)

Considered and decided by Harten, Presiding Judge, Davies, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

DAVIES, Judge

Relator, a local citizens group, challenges a county planning commission's decision to issue a conditional use permit for sand and gravel mining on land near their residences, asserting the decision was unreasonable, arbitrary, and capricious. We affirm.

FACTS

By resolution in October 1995, the Wright County Planning Commission (the commission) issued a conditional use permit (CUP) to respondent Buffalo Bituminous, Inc. (Bituminous), allowing Bituminous to mine gravel on leased property located in Monticello Township, Wright County. The commission's resolution denied the part of Bituminous's application seeking a CUP for a hot-mix asphalt plant.

Relator Citizens Against the Pit is a group of local residents who live in residential subdivisions north of the proposed mine site. By writ of certiorari, relator now seeks review of the commission's decision in this court.

D E C I S I O N

A county's decision to grant or deny a CUP is a quasi-judicial decision, reviewable in this court by writ of certiorari. [1] Neitzel v. County of Redwood, 521 N.W.2d 73, 75 (Minn. App. 1994), review denied (Minn. Oct. 27, 1994). The decision will be upheld unless it was unreasonable or arbitrary and capricious. Honn v. City of Coon Rapids, 313 N.W.2d 409, 416-17 (Minn. 1981).

On review, this court addresses the legal sufficiency of the reasons given by the local authority and the factual basis supporting those reasons. Parranto Bros., Inc. v. City of New Brighton, 425 N.W.2d 585, 589 (Minn. App. 1988), review denied (Minn. July 28, 1988). A CUP "may be denied for reasons relating to public health, safety, and general welfare." Chanhassen Estates Residents Ass'n v. City of Chanhassen, 342 N.W.2d 335, 340 (Minn. 1984). However,

when 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.

Id. If a CUP applicant meets specified standards in the zoning ordinance, the CUP must be granted and a denial is considered arbitrary as a matter of law. Hay v. Township of Grow, 296 Minn. 1, 5, 206 N.W.2d 19, 22 (1973); Scott County Lumber Co. v. City of Shakopee, 417 N.W.2d 721, 727 (Minn. App. 1988), review denied (Minn. March 23, 1988). A challenge to the approval of a CUP carries a higher burden of proof than a landowner's challenge to a denial of a CUP. Board of Supervisors v. Carver County Bd. of Comm'rs, 302 Minn. 493, 499, 225 N.W.2d 815, 819 (1975).

I. Stare Decisis

In 1991 and 1992, the commission denied similar applications by Bituminous for CUPs allowing gravel mining and a hot-mix asphalt plant on this same property. The denials were based on typical concerns related to development of this type of facility near residential areas: noise, odor, dust, fumes, vibration, and impairment of property values. Relator argues that the commission, by granting the 1995 application after having rejected the earlier petition, failed to follow the doctrine of "stare decisis." (The claim is more likely res judicata, but we will use relator's term.)

Relator provides no legal support for the proposition that a zoning commission is bound by stare decisis (or res judicata), and we hold the doctrine inapplicable. The commission's decisions in 1991 and 1992 were reviewable under a "reasonableness" standard and that standard applies to its decision in 1995 as well. We note further that, although the 1995 application was significantly different from the earlier ones, [2] the commission would have been free to change its mind even on an identical application so long as its findings reasonably related to the requirements of the zoning ordinance and were supported by the record before it. In fact, the Wright County zoning ordinance plainly contemplates reapplications for CUPs, requiring only that the applicant wait six months after a denial.

II. Evidence Supporting the Commission's Decision

Wright County, Minn., Zoning Ordinance ' 505.1 (1995) contains six criteria that must be met before a conditional use permit is granted. Relator argues that the commission's decision is factually insufficient as to the following three criteria:

(1) That the Conditional Use will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted, not substantially diminish and impair property values within the immediate vicinity;

(2) That the establishment of the Conditional Use will not impede the normal and orderly development and improvement of surrounding vacant property for uses predominant in the area;

* * *

(6) That adequate measures have been taken or will be taken to prevent or control offensive odor, fumes, dust, noise, and vibration, so that none of these will constitute a nuisance * * *.

A. Enjoyment and Value of Property -- Criterion 1

As to the first criterion, relator essentially argues that its members' opposition itself establishes injury to the enjoyment of property. We disagree. "Enjoyment of property" has a more refined meaning than relator suggests; otherwise, the commission's authority would be supplanted by the county's residents. As discussed below, the commission reasonably concluded that potential negative effects of the mining operation will be sufficiently addressed by the proposed abatement measures.

Relator also argues that property values will diminish substantially if the mining operation is established. The commission heard testimony from Bituminous's expert appraiser indicating that the mining operation would not have such an effect. This evidence provides a rational basis for the commission's conclusion that property values would not be substantially impacted. Relator argues that other expert testimony suggests the contrary conclusion, but we must defer to the commission's broad discretion in resolving this fact (and credibility) issue.

B. Effect on Surrounding Property -- Criterion 2

The land at issue is located in Monticello Township. That township's planning board (the board) recommended denial of the CUP applications in 1991, 1992, and 1995 because of the board's concern that, if approved, the pit operation would adversely affect development in the area. The commission's denials of the 1991 and 1992 applications were based in part on such board recommendations. Relator appears to argue that the commission acted arbitrarily by now "set[ting] the Township's concern aside."

This argument is unpersuasive. First, Bituminous's real estate expert testified before the commission that residential neighborhoods and gravel mining operations can co-exist without "substantially impact[ing]" property values. The CUP contains numerous conditions to minimize the impact of the mining operation on surrounding property.

More important, though, is the fact that the property at issue, and most of the other land in the area, is zoned general agricultural. Under the zoning ordinance, "mining, sand and gravel extraction" is expressly designated a "conditional use" in that zone. Wright County, Minn., Zoning Ordinance ' 604.4 (1995). Thus, such a use is deemed "consistent with the public health, safety, and general welfare and consonant with the goals of [the locale's] comprehensive plan." Chanhassen Estates, 342 N.W.2d 335 at 340. Further, gravel mines and/or hot-mix plants have existed in the area in every decade since the 1950s. Many of the members of relator group live on nearby residential property that was developed on agriculturally zoned land in the early 1970s and at that time an operating gravel mine existed on the land immediately south of the land at issue here. The commission had ample evidence before it to conclude that Bituminous's proposed operation is a "predominant use" of land in the area and is thus in conformity with the CUP criterion.

C. Dust, Noise, and Fumes -- Criterion 6

Relator argues that the commission acted arbitrarily and capriciously by reversing its earlier decisions, ruling that these concerns have been adequately addressed by Bituminous. We disagree, for there was sufficient evidence to support the commission's decision.

Relator's argument regarding dust is simply that dust is "inherent" with gravel mining and thus will be a "nuisance" to surrounding property. Bituminous has addressed the concern, however, by developing substantial dust control measures, including dust suppressants, protective vegetation on berms, "progressive reclamation," a main "haul road" far from the residential developments, and use of asphalt. The commission's decision to accept these measures as adequate was reasonable.

As to noise, Bituminous's expert contradicted relator's expert's conclusion that a noise violation does or will exist. We hold that there was sufficient evidence to support the commission's conclusion that noise concerns have been adequately addressed. Even if a noise violation does result, Minn. Stat. ' 116.07, subd. 2a (Supp. 1995), appears to provide an exception that would apply to Bituminous's operation. All involved are aware of the potential noise issue and intend to address it as necessary.

Odor appears to have been related primarily to the rejected hot-mix plant, and relator does not develop any concerns about odor in its brief.

The concerns, as a whole, do not make the commission's decision legally insufficient.

III. Arbitrary and Capricious Decision-Making Process

During the proceedings, the Wright County planning and zoning director, whose department recommended approval of the CUP to the commission, noted that the gravel mine would be an important economic resource to the community. Relator argues that this economic consideration is not listed as a criterion in the zoning ordinance and thus was improperly considered by the commission.

We do not believe that it would necessarily have been improper for the commission to consider economic factors related to the mining operation. In Scott County Lumber, 417 N.W.2d at 723-24, 727, this court reversed the denial of a CUP for a gravel mining operation, noting that expert testimony (by an expert who also testified in this case) indicated that the mine would have positive economic effects.

More importantly, though, the commission's decision does not state that it considered such concerns; relator alleges only that the zoning director considered them in making his recommendation to the commission. This argument does not provide grounds for reversal of the commission's decision to grant the CUP.

Affirmed.


Footnotes

[1] Wright County, Minn., Zoning Ordinance ' 505 (1995) authorizes the commission to issue CUPs.

[2] Bituminous's new 1995 application addresses the potential negative impact of the operation in much more detail than its earlier applications. It retained experts to provide opinions on those concerns, and made more specific the plans to minimize adverse effects and to restore the land.