This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-96-1372

Scott Gustafson,

Respondent,

vs.

Board of Supervisors of Stanton Township,

Goodhue County, Minnesota,

Appellant.

Filed February 4, 1997

Affirmed

Peterson, Judge

Goodhue County District Court

File No. C7951446

Thomas M. Scott, Campbell, Knutson, Scott, & Fuchs, P.A., 317 Eagandale Office Center, 1380 Corporate Center Curve, Eagan, MN 55121 (for Appellant)

Gary W. Koch, Gislason, Dosland, Hunter, & Malecki, P.L.L.P., One South State Street, P.O. Box 458, New Ulm, MN 56073 (for Respondent)

Troy J. Gilchrist, 805 Central Avenue East, P.O. Box 267, St. Michael, MN 55376 (for Amicus Curiae Minnesota Association of Townships)

Daniel J. Greensweig, Kennedy & Graven, Chartered, 470 Pillsbury Center, Minneapolis, MN 55402, Mark F. Ten Eyck, Minnesota Center for Environmental Advocacy, 26 East Exchange Street, Suite 206, St. Paul, MN 55101 (for Amicus Curiae Minnesota Center for Environmental Advocacy)

Considered and decided by Peterson, Presiding Judge, Klaphake, Judge, and Amundson, Judge.

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

PETERSON, Judge

In this zoning action, the Board of Supervisors of Stanton Township argues the district court erred in determining that the setback and animal unit requirements in a zoning amendment are not supported by any rational basis related to promoting the public welfare and that the valid sections of the amendment are not severable. We affirm and therefore do not reach the issues raised by Scott Gustafson in his notice of review.

FACTS

Respondent Scott Gustafson operates a 2,440 head hog feedlot in Stanton Township. Gustafson obtained permits from the township and Goodhue County to build an additional 2,000 head hog feedlot on his property. The township's land use plan provided that agriculture is the primary use of the land where Gustafson's new facility will be located.

Before Gustafson obtained the necessary state permits to build his new feedlot, appellant, the Board of Supervisors of Stanton Township, adopted a feedlot amendment to the township's zoning ordinance. The amendment provides in relevant part that (1) existing feedlots located in farmyards can expand up to 300 animal units as a permitted use provided that there is a seven foot per animal unit setback from the nearest occupied dwelling and (2) existing feedlots located in farmyards can expand to over 300 animal units provided that the owner obtains a conditional use permit and complies with a seven foot per animal unit setback from the nearest occupied dwelling, with a minimum 2,000 foot setback. Stanton Township, Minn., Zoning Ordinance § 11, 11 (Apr. 18, 1995). The amendment defines "farmyard" and "animal unit."[1] Id., § 6 (Apr. 18, 1995).

The Board meeting at which the amendment was adopted was not recorded. The Board's minutes state that when it adopted the amendment, it also directed the town planning commission to

review and study and forward back to the board with a rational basis as to the number of animal units that could be allowed in the different ag districts and IF the seven foot rule should be abolished.

The Board also adopted a policy statement that expresses its desire to use its zoning power to control feedlot odor and to protect property values. The policy statement also states:

Two aspects of the Stanton feedlot ordinance may need explanation. One of those is the use of 300 animal units as a distinction between a permitted use feedlot and a conditional use feedlot: Stanton Township understands that a 300 animal unit dairy farm would consist of a herd of approximately 100 milk cows, managed by two or three adults, and recognizes that as being the traditional family farm to which the 1983 Land Use Plan referred. Stanton Township believes that a farm of that sort or smaller, even if in the feedlot configuration, should not be conditioned as to its use; correspondingly, it is the belief of Stanton Township that it would then be inappropriate to impose the conditional use process on a feedlot farm, either confining fowl, or confining animals other than dairy cows, if its size is 300 animal units or smaller.

Gustafson sued the Board seeking a declaratory judgment that the ordinance is arbitrary and capricious and therefore invalid.[2] At trial, Board member Mike Daniels testified that the Board chose the 300 animal unit and 2,000 foot setback restrictions because Goodhue County used those numbers in its zoning ordinance. Daniels said the Board did not independently evaluate these figures. Daniels testified that the Board arrived at the seven foot per animal unit setback by dividing 2,000 feet by 300 animal units. Daniels said the Board did not rely on any studies or reports showing that the setback and animal unit figures it chose would protect property values or reduce odor.

The county zoning ordinance upon which the Board relied uses 300 animal units as the threshold for increasing the setback required for a new feedlot in a farmyard in either an A-1 or A-2 agricultural district. Goodhue County, Minn., Zoning Ordinance art. 5, § 7, subd. 2 (1993). Under the county ordinance, a new feedlot in a farmyard is a permitted use. If the new feedlot has fewer than 300 animal units, it must be at least one-quarter mile from a residential district and if it has more than 300 animal units, it must be at least one-half mile from a residential district, but there is no setback requirement relating to dwellings within an agricultural district. Id. Also under the county ordinance, feedlots located outside a farmyard are allowed by conditional use permit. The ordinance requires a 2,000 foot setback from the nearest residential dwelling for a new feedlot located outside a farmyard in an A-2 district but does not apply this setback requirement to a feedlot located outside a farmyard in an A-1 district. Id., art. 11, § 5, subd. 3 (1993). The purpose of the A-1 district is to preserve and encourage agriculture by restricting nonfarm uses. Id., art. 10, § 1 (1993). The purpose of the A-2 district is to maintain agricultural uses but to allow more nonfarm uses. Id., art. 11, § 1 (1993). Gustafson's land is located in an A-1 district.

The district court concluded that although the record showed a rational basis for the Board's concern about odor and property values, it did not show that the setback requirements and animal unit figures used in the amendment have a rational basis related to the promotion of the township's health, safety, or welfare. The court therefore held that the setback requirements and the animal unit figures are invalid. The court also determined that the valid provisions of the amendment are not severable. The court denied the Board's motion for amended findings or a new trial.

D E C I S I O N

In a zoning case, we independently examine the zoning agency's decision and record, as augmented at trial, without according any deference to the district court's review. St. Croix Dev., Inc. v. City of Apply Valley, 446 N.W.2d 392, 397 (Minn. App. 1989), review denied (Minn. Dec. 1, 1989).

As a legislative act, a zoning or rezoning classification must be upheld unless opponents prove that the classification is unsupported by any rational basis related to promoting the public health, safety, morals, or general welfare * * *.

State, by Rochester Ass'n of Neighborhoods v. City of Rochester, 268 N.W.2d 885, 888 (Minn. 1978).

Although the zoning body need not make formal findings of fact,

it must, at a minimum, have the reasons for its decision recorded or reduced to writing and in more than just a conclusory fashion.

Honn v. City of Coon Rapids, 313 N.W.2d 409, 416 (Minn. 1981). The lack of contemporaneous findings is per se arbitrary and capricious, but this presumption can be rebutted at trial by new or additional evidence relevant to the issues raised and considered by the zoning agency. Communications Properties, Inc. v. County of Steele, 506 N.W.2d 670, 672 (Minn. App. 1993).

The Board argues that the setback and animal unit numbers used in the amendment have a rational basis related to controlling odor and preserving property values. But Gustafson established that when the Board adopted the amendment, it did not refer to any information, studies, or reports showing that the setback and animal unit numbers used in the amendment had any relationship to controlling odor or preserving property values. Instead, the Board directed the planning commission to develop a rational basis for the animal unit and seven foot setback figures.

The Board argues it may rely on the experience of its members to support the setback and animal unit figures used in the ordinance. See Parranto Bros., Inc. v. City of New Brighton, 425 N.W.2d 585, 590 (Minn. App. 1988) (in small community, city officers have experience and capacity to measure effect of zoning decision on community without relying on experts), review denied (Minn. July 28, 1988). But

[r]elaxing the requirement for findings based on expert opinions or other evidence should be narrowly construed as an exception to the general rule.

Communications Properties, 506 N.W.2d at 672. We will not relax the requirement for findings here because the record contains no evidence showing that the Board's decision regarding the setback and animal unit figures used in the amendment was influenced or affected by the experience of the Board members.

Instead, the record shows that the Board chose the setback and animal unit figures because these numbers were used in the county ordinance. But the 2,000 foot setback requirement in the county ordinance applies to feedlots located outside a farmyard, and the 300 animal unit threshold in the county ordinance is used to determine how far a new feedlot in a farmyard must be set back from a residential district and does not apply to dwellings within an agricultural district. Goodhue County, Minn., Zoning Ordinance art. 5, § 7, subd. 2; art. 11, § 5, subd. 3. The township's feedlot amendment applied the setback and animal unit figures from the county ordinance to existing feedlots in a farmyard and dwellings in an agricultural district. Stanton Township, Minn., Zoning Ordinance § 11, 11. The fact that the county used the setback and animal unit figures for one purpose does not provide a rational basis for the Board's use of these figures for another purpose.

Further, the Township's land use plan provides that agriculture is the primary use of the land where Gustafson's feedlot will be located. Applying the county setback and animal unit requirements for residential districts to land used primarily for farming is inconsistent with the township's plan. This inconsistency is additional evidence that the setback and animal unit figures used in the amendment are arbitrary. See Amcon Corp. v. City of Eagan, 348 N.W.2d 66, 74-75 (Minn. 1984) (although land use designation in master plan generally is advisory, refusal to zone according to the plan is evidence of arbitrary action).

The Board finally argues that there is a rational basis for the amendment because 300 animal units is the size of the traditional family farm contemplated by the township's land use plan. Although the Board's policy statement gives the Board's reasons for not regulating farms with fewer than 300 animal units, the statement provides no reasons for regulating farms with more than 300 animal units and, therefore, does not provide a rational basis for regulating farms with more than 300 animal units.[3]

Because the setback and animal unit numbers used in the amendment are not supported by any rational basis related to the promotion of the public health, safety, and welfare, those parts of the amendment are invalid.

The Board argues that the remaining provisions in the amendment are severable.

Unless there is a provision in the law that the provisions shall not be severable, the provisions of all laws shall be severable. If any provision of a law is found to be unconstitutional and void, the remaining provisions of the law shall remain valid, unless the court finds the valid provisions of the law are so essentially and inseparably connected with, and so dependent upon, the void provisions that the court cannot presume the legislature would have enacted the remaining valid provisions without the void one; or unless the court finds the remaining valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.

Minn. Stat. § 645.20 (1996); see Chanhassen Estates Residents Ass'n v. City of Chanhassen, 342 N.W.2d 335, 339 n. 3 (Minn. 1984) (rules of statutory construction apply when construing municipal ordinances). Without the setback and animal unit numbers, the remaining provisions of the amendment are incomplete and incapable of being executed in accordance with the Board's intent. Therefore, the provisions are not severable.

Affirmed.

[ ]1An animal unit was a measure based on the amount of manure produced by an animal. Stanton Township, Minn., Zoning Ordinance § 6 (Apr. 18, 1995). The amendment established that a hog weighing more than 55 pounds was equivalent to .4 animal units. Id.

[ ]2Gustafson also argued the amendment was in conflict with and preempted by state law and did not apply to him because he had a vested right to build under the prior ordinance. The district court resolved these issues against Gustafson. Gustafson filed a notice of review and we allowed two parties to file amicus briefs addressing the issues Gustafson raised. Given our decision, however, we do not reach these issues.

[ ]3We also note that in the policy statement, the Board states that 300 animal units would be equivalent to 100 dairy cows. Under the amendment, however, 300 animal units actually would be equivalent to 214 dairy cows. See Stanton Township, Minn., Zoning Ordinance § 6 (one dairy cow equivalent to 1.4 animal units).