This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Interstate Power Company, Inc.,

a Delaware corporation,



Nobles County Board of Commissioners,


Filed March 30, 1999

Affirmed in part, appeal dismissed in part

Harten, Judge

Nobles County Board of Commissioners

Phillip A. Kohl, III, John T. Hareid, Christopher B. Clark, Christian & Peterson, P.A., 314 South Broadway, Albert Lea, MN 56007 (for relator)

Jay T. Squires, Jill M. Krummen, Ratwik, Roszek & Maloney, P.A., 300 Peavey Building, 730 Second Avenue South, Minneapolis, MN 55402 (for respondent)

Considered and decided by Harten, Presiding Judge, Randall, Judge, and Shumaker, Judge.



On appeal by certiorari, relator argues that respondent county's denial of a conditional use permit was unlawful, without factual basis, and an improper revenue measure. Relator further argues that the county's amendment of its zoning ordinance was an abuse of the county's police power and an unconstitutional taking. We conclude that the permit was lawfully denied and affirm, but dismiss for lack of jurisdiction the issues concerning validity of the zoning ordinance as amended.


In 1997, relator Interstate Power Company, Inc., requested a conditional use permit (CUP) from Nobles County to upgrade about three miles of its power lines from 24 kV to 65 kV. A permit was necessary because relator's easements were in an Agricultural Preservation Zone, which required a permit for lines over 35 kV.

The County Planning Commission (commission) held a hearing and recommended that the permit be granted with the requirement that relator be responsible for any relocation of its utilities necessitated by county road work; the County Board (board) adopted the commission's recommendation. Relator appealed by certiorari to this court, challenging the requirement. In Interstate Power Co. v. Nobles County Bd. Of Comm'rs, No. C5-95-1704, slip op. at 2 (Minn. App. Apr. 30, 1998) (Interstate I), we concluded that the board did not make findings sufficient to allow judicial review. Accordingly, we reversed denial of the permit and remanded to the board for further proceedings and findings. Id. at 3.

On remand, the commission held a hearing in June 1998 to consider an amendment to its ordinance that required all essential services situated outside the public right-of-way to be set back at least 100 feet from the center of the road. The commission recommended the amendment and the board adopted it on July 7, 1998.

That same day, the commission held a hearing regarding relator's CUP. It found that relator's contemplated placement of new lines and poles would negatively affect both county's plan to widen the road and its plan to acquire slope easements to prevent snow drifts and to enhance traffic and recommended that the county deny relator's CUP. It also based its recommendation on the amendment requiring the setback of essential services.

The board agreed with the commission's recommendations, adopted its findings of fact, and denied relator's permit. Relator again seeks our review by writ of certiorari.


1. Conditional Use Permit

a. Standard of Review

Local authority over land use is entitled to great deference, and this court will not overturn a county's decision unless it has no rational basis. SuperAmerica Group v. City of Little Canada, 539 N.W.2d 264, 266 (Minn. App. 1995), review denied (Minn. Jan. 5, 1996). A county board's denial of a CUP is reviewed only by a writ of certiorari to the court of appeals. Molnar v. County of Carver Bd. of Comm'rs, 568 N.W.2d 177, 180 (Minn. App. 1997).

In reviewing the quasi-judicial decision of a government body * * *, we consider whether the decision was arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it. The court must assess the legal sufficiency and factual basis of the reasons given for the decision.

Id. at 181 (quotation and citation omitted). The inquiry focuses on "whether the proposed use is contrary to the general welfare as already established in the zoning ordinance." Honn v. City of Coon Rapids, 313 N.W.2d 409, 417 (Minn. 1981). Here, section 505.1 of the county zoning ordinance states that in granting a CUP, the board must consider the advice of the commission and the effect "of the proposed use upon the health, safety, morals, and general welfare of occupants of surrounding lands, including land values."

b. Application of Zoning Ordinance Amendment

Relator argues that the board erroneously relied on an ordinance amendment to deny the CUP. Relator claims that because the amendment was passed after our decision in Interstate I remanding the board's initial decision denying the CUP, the board's action on remand was limited to issues raised in earlier proceedings. To support this claim, relator relies on Earthburners v. County of Carlton, 513 N.W.2d 460, 463 (Minn. 1994) (on remand, restricted board's inquiry to issues raised in earlier proceedings to prevent unfairness to applicant). But Earthburners is distinguishable; it did not involve an amendment to a zoning ordinance. The board did not err in relying on the amendment.

Relator also argues that McClelland v. McClelland, 393 N.W.2d 224, 226 (Minn. App. 1986), review denied (Minn. Nov. 17, 1986), provides that this court should not consider intervening changes in law after a remand and before a second appeal because the original law under which the case is decided is the law of the case. But

[t]here is a well-recognized exception * * * that the "law of the case" doctrine must yield to an intervening change of controlling law. This exception arises out of the general principle that a court is to apply the law in effect at the time it renders its decision * * *.

Id. at 226 (citations omitted). A court will apply a change in intervening law, however, when doing so would not (1) alter matured or unconditional rights, (2) impose new and unanticipated obligations, or (3) work an injustice due to the nature and identity of the parties. Id. But McClelland dealt with a maintenance question in a dissolution case. Id. at 225. Research has produced no case dealing with municipal zoning where this exception to law of the case is an issue. Moreover, even if McClelland did apply, relator's argument would fail because it does not meet the conditions under which an intervening law will not be followed.

Relator did not have a vested right in the permit because "there is no vested right in zoning matters." Naegele Outdoor Advertising v. Lakeville, 532 N.W.2d 249, 254 (Minn. App. 1995), review denied (Minn. July 20, 1995). Nonetheless,

[u]nder certain limited circumstances, an unrealized right is recognized when it has arisen upon a contract, or transaction in the nature of a contract, authorized by statute and liabilities under that right have been so far determined that nothing remains to be done by the party asserting it. An application for a permit may suffice, if the applicant has complied with all the provisions of the then pertinent code.

Id. (quotation and citation omitted). "One who has acquired property zoned for particular purposes * * * should be entitled to rely thereon as against the arbitrary enactment of amendments thereto * * *." Olsen v. City of Minneapolis, 263 Minn. 1, 12, 115 N.W.2d 734, 741 (1962) (reversing denial of permit to erect gas station and ordering issuance because vested rights were acquired as a result of existing ordinances). But where ordinances do not create vested rights, a municipality may enact an amendment that cuts off a previously issued license. See, e.g., Hawkinson v. Itasca County, 304 Minn. 367, 374, 231 N.W.2d 279, 283 (1975) (no vested right in unzoned property used for commercial purposes later zoned residential; overt acts are essential to acquire vested rights); Kiges v. City of St. Paul, 240 Minn. 522, 538, 62 N.W.2d 363, 373-74 (1953) (licensee who proceeded no farther than excavation did not acquire vested right; subsequent amendment to zoning ordinance nullified business license).

Here, the land on which the relator has easements is zoned "Agricultural Preservation." One of the permitted uses is "power transmission lines under 35 kV within the road right-of-way." All other uses require a CUP. Relator wants to install 65 kV electrical lines, which do not comply with pertinent provisions of the zoning ordinance. This fact makes relator's case unlike Olsen, where the zoning ordinance already allowed gas stations, but similar to Kiges and Hawkinson, where the zoning ordinances had no provision for the type of building that plaintiffs wanted to build and thus no vested rights were acquired, even though plaintiffs had incurred some expenses in reliance on the ordinances. Because nothing in County's ordinances allows the building of a 65 kV line and relator has made no investment in building new lines, it has no vested right in a CUP.

Relator next argues that the amendment subjects it to new and unanticipated obligations. But no lines larger than 35 kV were allowed under County's zoning ordinance, and the poles were placed on land zoned for agricultural purposes. Thus, while the amendment itself may be new, its effects are not obscure. Relator could have anticipated possible restriction or denial on installing 65 kV lines.

Relator also argues that the amendment was not effective when the board applied it because it had not then been published, citing Minn. Stat. § 412.191, subd. 4 (1998) (providing for ordinance adoption by city councils). But Minn. Stat. § 412.191 does not provide that publication is required before an ordinance becomes effective. Realtor's argument is unpersuasive; the county properly considered the amendment.

c. Factual Basis for Board's Denial of Permit

Relator argues that the board's decision was without factual basis, relying on Zylka v. City of Crystal, 283 Minn. 192, 167 N.W.2d 45 (1969), for the proposition that it is inappropriate for the board to adopt the commission's findings of fact. But in Zylka, neither the board nor the commission made findings of fact. That is not the case here.

Relator also disputes the commission's findings of fact, but we review the board's finding of facts, not the commission's. See Molnar, 568 N.W.2d at 180. Also, while some of the board's findings of fact are not supported by the record,

[n]ot all reasons for the denial of a [CUP] need be legally sufficient and supported by facts in the record. * * * Denial of a land use request is not arbitrary when at least one of the reasons given for the denial satisfies the rational basis test.

Trisko v. City of Waite Park, 566 N.W.2d 349, 352 (Minn. App. 1997) (quotation and citation omitted), review denied (Minn. Sept. 25, 1997).

Here, the board found that (1) the county is acquiring slope easements adjacent to rights-of-way to reduce their elevation and the amount of drifting snow and that electric poles two feet from the right-of-way will impair resloping, (2) drifting snow has a negative impact on public travel and emergency vehicles, and (3) the county may have to expand county roads 34 and 69 for safety reasons and relator's proposed use would burden the planned expansion because it would impair the county's ability to acquire easements. Facts in the record support these three reasons, satisfy the rational basis test, and are sufficient to deny the CUP.

d. Improper Revenue Measure

Relator argues that the denial of the CUP was in reality a measure for raising revenue and the county has the authority to deny a CUP only for reasons of public health, safety, and welfare. See Minn. Stat. § 394.21, subd. 1 (1998). Apart from relator's claims, there is no evidence in the record that the CUP denial is a revenue measure; at most, it results from the county's exercise of fiscal prudence. We cautioned the county in Interstate I that it lacks power to regulate zoning matters for revenue purposes; there is no evidence that the county acted illegally. We conclude that the county's findings adequately show that the CUP was denied for public health, safety, and welfare reasons.

2. Zoning Ordinance Amendment

The county argues that the amendment to its zoning ordinances is legislative and is therefore not properly before this court on certiorari. When amending a zoning ordinance, a municipality acts in a legislative capacity, and "[c]ertiorari is not appropriate." Honn, 313 N.W.2d at 416 (writ of certiorari is not proper procedure to review legislative rezoning decision); see also In re Merritt, 537 N.W.2d 289, 291 (Minn. App. 1995) ("certiorari is not the appropriate method of review of * * * [a] legislative rezoning decision").

Relator argues that we should consider the validity of the amendment because the appeal should not be split into two actions, citing as analogous criminal cases in which the defendant asserts the invalidity or unconstitutionality of a statute or ordinance. See, e.g., State v. Apple Valley Redi-Mix, 379 N.W.2d 136 (Minn. App. 1985) (defendant allowed to raise defense of invalid ordinance). But Apple Valley Redi-Mix is readily distinguishable; it did not involve a writ of certiorari.

We conclude that issues of the legality or unconstitutionality of the county's zoning ordinance are beyond the scope of our review by writ of certiorari. We therefore lack jurisdiction. As indicated in Honn, review of the ordinance's validity may be accomplished by declaratory judgment in the district court. We therefore dismiss that part of the appeal asserting the illegality or unconstitutionality of the county's amendment to its zoning ordinance.

Affirmed in part, appeal dismissed in part.