STATE OF MINNESOTA
IN COURT OF APPEALS
Clay Bryan, et al.,
Renville County Board of Commissioners,
Filed November 3, 1998
Reversed and remanded
Renville County Board
Gary W. Koch, Michael S. Dove, Richard F. Prim, Gislason, Dosland, Hunter & Malecki, P.L.L.P., 2700 South Broadway, P.O. Box 458, New Ulm, MN 56073 (for relators)
Thomas J. Simmons, Renville County Attorney, Benjamin H. Frisch, Assistant County Attorney, P.O. Box D, Olivia, MN 56277 (for respondent)
Considered and decided by Lansing, Presiding Judge, Short, Judge, and Holtan, Judge.[*]
Clay and Lisa Bryan submitted an application for a conditional use permit (CUP) to the Renville County Planning and Zoning Office to build three additional hog confinement facilities near their existing feedlot. The Renville County Planning Commission reviewed the Bryans' application and recommended the county board deny the request because: (1) odor caused by the expansion will diminish and impair property values in the immediate vicinity; (2) odor from the expansion of the feedlot from 2,000 animal units to 4,000 animal units will negatively impact the "livability" for those residents who live in the immediate area; and (3) establishment of the conditional use will impede the normal and orderly development of surrounding properties for uses predominant in the area. The county board followed the commission's recommendation and also cited Renville County, Minn., Renville County Zoning and Planning Ordinance § 2.25 (1998) as a reason for denial. By writ of certiorari, the Bryans argue the county board's denial lacked factual support, and thus is arbitrary and capricious. We reverse and remand.
A municipality (or county board) has broad discretionary power to deny a CUP application. Zylka v. City of Crystal, 283 Minn. 192, 196, 167 N.W.2d 45, 49 (1969). In reviewing permit denials, we assess the legal sufficiency of the reasons given and determine whether, if legally sufficient, they have a factual basis. C.R. Invs., Inc. v. Village of Shoreview, 304 N.W.2d 320, 325 (Minn. 1981). Unless the denial of a CUP is arbitrary and capricious, it will be upheld on appeal. Honn v. City of Coon Rapids, 313 N.W.2d 409, 416-17 (Minn. 1981); see also St. Croix Dev. Inc. v. City of Apple Valley, 446 N.W.2d 392, 398 (Minn. App. 1989) (noting denial of permit request not arbitrary when at least one reason satisfies rational basis test), review denied (Minn. Dec. 1, 1989).
Here, the record shows: (1) the only expert evidence reviewed by the board reported a positive correlation between feedlots and property values; (2) the Bryans live in an A-1 zoned agricultural district that encourages farm development; (3) six of the Bryans' neighbors wrote letters in support of the proposed expansion; and (4) one commissioner voted against denial of the Bryans' CUP request because the public registered no odor or property concerns, and speculation about the area's development lacked clarity. After a careful review of the limited record, we conclude the county board's odor concerns are unsupported by substantial evidence. See Minnetonka Congregation of Jehovah's Witnesses v. Svee, 303 Minn. 79, 85, 226 N.W.2d 306, 309 (1975) (stating "general objections of the opponents of the application are not competent evidence"); see, e.g., Trisko, 566 N.W.2d at 356 (ordering CUP because municipality based denial on speculation that granite quarry would cause or increase respiratory problems, rather than medical fact).
Reversed and remanded.
[*] Retired judge of the district court, serving as a judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.