This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).


Clay Bryan, et al.,


Renville County Board of Commissioners,

Filed November 3, 1998
Reversed and remanded
Short, Judge

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.[*]

U N P U B L I S H E D   O P I N I O N

SHORT, 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).


The Bryans argue the county board's link between order from the facilities and a decrease in the surrounding area's value, livability, and development is factually unsupported and thus the CUP request was arbitrarily denied. See Zylka, 283 Minn. at 198, 167 N.W.2d at 50 (recognizing lack of contemporaneous findings in support of denial is per se arbitrary and capricious). We agree. Generally, vague concerns are insufficient grounds for denial of a CUP request. See Chanhassen Estates Residents Ass'n v. City of Chanhassen, 342 N.W.2d 335, 340 (Minn. 1984) (concluding denial of permit must be based on something more concrete than "non-specific" neighborhood opposition). Moreover, although inconsistency with a land use plan may be a legally sufficient basis for denial, this reason creates an unreasonably vague standard absent more specific language. Trisko v. City of Waite Park, 566 N.W.2d 349, 355 (Minn. App. 1997), review denied (Minn. Sept. 25, 1997); cf. Hubbard Broad., Inc. v. City of Afton, 323 N.W.2d 757, 759, 763-64 (Minn. 1982) (upholding CUP denial because construction of satellite atop geologically rare hill inconsistent with rural and scenic purposes of land use plan); Barton Contracting Co., Inc. v. City of Afton, 268 N.W.2d 712, 717-18 (Minn. 1978) (upholding CUP denial because expansion of gravel pit disrupts plan to preserve unique character of Afton and St. Croix Valley).

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).


The Bryans also argue Renville County, Minn., Renville County Zoning and Planning Ordinance § 2.25 does not apply retroactively and, as a result, the county board is precluded from basing its denial on this provision. See Minn. Stat. § 645.21 (1996) (stating no law shall be construed to be retroactive unless clearly and manifestly so intended by the lawmakers). We agree. The record shows: (1) the Bryans submitted their application on January 2, 1998; (2) county lawmakers enacted section 2.25 on February 3, 1998, stating it "shall be in full force and effect from and after its passage"; and (3) the county cited no reasons for its enactment of this provision. Under these circumstances, section 2.25 does not apply retroactively, and cannot be used as a basis for denying the Bryans' CUP request. See Ubel v. State, 547 N.W.2d 366, 370 (Minn. 1996) (interpreting statute prospectively because legislature failed to articulate contrary intention); see also Frank's Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn. 1980) (noting zoning ordinances must be construed strictly in favor of property owners). We reverse the county board's denial of Bryan's CUP request and remand for proceedings not inconsistent with this opinion.

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.