This opinion will be unpublished and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

C1-97-1926

Stuart Hamilton,

Relator,

vs.

County of Stearns,

Respondent.

Filed June 9, 1998

Reversed and Remanded

Shumaker, Judge

Stearns County Planning Commission

John R. Koch, Reichert, Wenner, Koch & Provinzino, P.A., 501 St. Germain, P.O. Box 1556, St. Cloud, MN 56302 (for relator)

Roger S. Van Heel, Stearns County Attorney, Jacqueline M. Schuh, Assistant County Attorney, 705 Courthouse Square, Administration Center, Room 448, St. Cloud, MN 56303-4773 (for respondent)

Considered and decided by Shumaker, Presiding Judge, Huspeni, Judge, and Schumacher, Judge.

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

SHUMAKER, Judge

Relator Stuart Hamilton challenges the Stearns County Planning Commission's denial of his request for an after-the-fact conditional use permit arguing that the denial was unreasonable, arbitrary and capricious. We reverse and remand.

FACTS

Relator decided to build a permanent dock on his lakefront property on Big Watab Lake in Stearns County. He hired an engineer to design the dock and to supervise construction. The engineer inquired of the county's environmental services department as to zoning restrictions. The county indicated that it had no jurisdiction over docks in public waters and referred the engineer to the Minnesota Department of Natural Resources (DNR). The DNR issued the necessary dock permit but cautioned that any construction done above the ordinary high water level of the lake might require a permit from the local governmental authority.

Relator did not obtain a permit from the county but instead began construction of the dock. When the dock was nearly completed, the county informed relator that he was in violation of a county shoreline management ordinance which specifies requirements for grading and filling altered lakeshore land.

County ordinances provide for after-the-fact conditional use permits. Relator applied for a permit and his engineer attended a public hearing on the application before the county's planning commission. The commission noted opposition by various lake residents. The reasons for the opposition were (1) the dock and retaining walls are out of character on the lake; (2) there is no need for a permanent dock; (3) soil erosion associated with the dock has had a negative impact on the lake; (4) the dock construction closes an access road; (5) a permanent dock sets an undesirable precedent; (6) supporting beams in the water are a safety hazard; (7) and a permanent dock will not withstand ice formation. Without making findings or giving any explanation, the commission voted to deny relator's application and to require relator to restore the area to its original condition. Relator appealed.

D E C I S I O N

On appeal "we are thus required to assess the legal sufficiency of the reasons given by the council and to determine whether, if legally sufficient, they had a factual basis." C.R. Investments, Inc. v. Village of Shoreview, 304 N.W.2d 320, 325 (Minn. 1981). In Minnetonka Congregation of Jehovah's Witnesses, Inc. v. Svee, 303 Minn. 79, 84, 226 N.W.2d 306, 308 (1975) (citing Zylka v. City of Crystal, 283 Minn. 192, 196, 167 N.W.2d 45, 49 (1969)), our supreme court stated:

* * * [A]n arbitrary denial may be found by a reviewing court when the evidence presented at the hearing before the municipal governing body and the reviewing court establishes that the requested use is compatible with the basic use authorized within the particular zone and does not endanger the public health or safety or the general welfare of the area affected or the community as a whole.

Under Honn v. City of Coon Rapids, 313 N.W.2d 409, 416-417 (Minn. 1981), the supreme court made a distinction between legislative and quasi-judicial matters, such as variances and special use permits, and said:

[T]he standard of review is the same for all zoning matters, namely, whether the zoning authority's action was reasonable. Our cases express this standard in various ways: Is there a "reasonable basis" for the decision? or is the decision "unreasonable, arbitrary or capricious"? or is the decision "reasonably debatable"?

* * * *

But the approach is different in a special use permit case, where reasonableness is measured by the standard set out in the particular local ordinance, not the statute. Id.

City councils and zoning boards must, "at a minimum, have the reasons for [their] decision recorded or reduced to writing and in more than just a conclusory fashion." Curtis Oil v. City of North Branch, 364 N.W.2d 880, 883 (Minn. App. 1985) (quoting Honn v. City of Coon Rapids, 313 N.W.2d 409, 416 (Minn. 1981)). "[B]y failing to do so [the municipal body] runs the risk of not having its decision sustained." Id.

We note that the planning commission gave no reasons for its decision, nor does the record provide any factual basis for the decision. The residents' complaints appear to be mere conclusions or speculation and many of them pertain to matters not within the county's shoreline jurisdiction. Where there is no evidentiary basis that would allow an inference that the commission posited its decision on facts and proper reasons rather than on mere whim, we are compelled to conclude that the decision was arbitrary. See Zylka v. City of Crystal, 283 Minn. 192, 198, 167 N.W.2d 45, 50 (1969), and Hay v. Township of Grow, Anoka County, 296 Minn. 1, 5, 206 N.W.2d 19, 22 (1973).

Relator argues that the matter should not be remanded because the commission will simply try to justify its original decision. In Earthburners, Inc. v. County of Carlton, 513 N.W.2d 460, 463 (Minn. 1994), the supreme court expressed a reluctance to allow local boards an opportunity to rationalize and justify original decisions in remanded cases. We share that concern, but the planning commission ought to have the opportunity to scrutinize the record as it exists, to make the appropriate decision on that record, and to articulate that decision.

We express no opinion on how to decide the remanded issue.

Reversed and remanded.