may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Cynthia Terpstra, et al.,
Brian Peterson, et al.,
Rice County Board of Commissioners,
Filed May 11, 1999
Rice County Board of Commissioners
Robert G. Hensley, Doherty, Rumble & Butler, 2800 Minnesota World Trade Center, 30 East Seventh Street, St. Paul, MN 55101 (for respondents Peterson, et al.)
Jeffrey D. Thompson, Rice County Attorney, Mark R. Azman, Assistant County Attorney, Quinlivan & Hughes, P.A., 1530 Highway 52 North, P.O. Box 7117, Rochester, MN 55903 (for respondent Rice County Board of Commissioners)
Considered and decided by Klaphake, Presiding Judge, Short, Judge, and Holtan, Judge.
Relators Cynthia and Philip Terpstra challenge the Rice County Board of Commissioners' (the board's) approval of a conditional use permit (CUP) for a covered hog feedlot. Relators contend the board failed to make the findings required by certain Rice County ordinances and further contend the board's decision to approve the CUP was arbitrary and unreasonable. We affirm.
Because the farm was to be expanded to house more than 750 animal units, the Rice County Feedlot Ordinance required a CUP before building could begin. The Petersons began applying for a CUP in the spring of 1998.
Relators are neighbors of the Peterson farm. Upon learning of the proposed feedlot, relators petitioned the Minnesota Environmental Quality Board (EQB) to require an environmental assessment worksheet (EAW). The EQB determined that the decision whether to require an EAW lay with the Rice County board.
On July 14, 1998, after a hearing on the matter, the board determined that an EAW was not necessary. After a hearing by the planning commission and another hearing by the board, the board voted to approve the CUP on August 25, 1998.
confined to questions affecting the jurisdiction of the board, the regularity of its proceedings, and, as to merits of the controversy, whether the order or determination in a particular case was arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it.Sellin v. City of Duluth, 248 Minn. 333, 339, 80 N.W.2d 67, 71 (1956).
(d) In determining appropriate conditions the Board shall consider but is not limited to:
(1) The effect of the proposal upon the public health, safety and welfare of the residents of Rice County;
(2) The effect of the proposal on neighbors, neighboring properties and the Environment;
(3) The effectiveness of the Manure Management Plan;
(4) The effectiveness of the Odor Control Plan proposed for the feedlot[.]
(Emphasis added.) Relators contend that section (d) requires the board to make findings supporting the board's decision. However, the language of section (d) appears to require only that the board consider the listed factors. Here, the Petersons submitted information with respect to all four of the section (d) factors to the board as part of their CUP application. Furthermore, several amendments relating to these factors were offered and discussed at the board meeting; that these discussions occurred establishes that the board considered the section (d) factors before reaching a decision. Finally, where a county board approves an application for a conditional use permit, as the board did here, the board implicitly determines that all requirements for the granting of the permit have been met. Haen v. Renville County Bd. of Comm'rs, 495 N.W.2d 466, 471 (Minn. App. 1993), review denied (Minn. Mar. 30, 1993). We therefore conclude that the board satisfied any requirements imposed by section (d).
Relators next contend the board failed to impose conditions as required by section (e) of the feedlot ordinance. Section (e) states:
(e) The Board shall impose conditions on the granting of a Conditional Use Permit which may include but are not limited to the following:
(1) A limitation on the number of animals allowed at the subject site * * *.
(2) A limit on the size and location of earthen storage structures.
(3) Construction requirements for earthen storage structures that are in addition to the requirements of Section 735.008 of this Ordinance.
(4) An increase in required setbacks.
(5) Such additional requirements as the Board determines are necessary to safeguard the health, safety and welfare of the county.
(Emphasis added.) Relators argue that the "shall" language in part (e) requires the board to condition the grant of a permit. However, part (e) states that the conditions "may include but are not limited to the following." This language indicates that it might be acceptable to grant a permit without conditions in some cases. Moreover, the board did impose conditions on the granting of the CUP here, they just did not address limiting the number of animal units, limiting the size of earthen structures, or affecting the setback requirements as discussed in the ordinance. Because the Feedlot Ordinance does not appear to require that any specific conditions be placed on the grant of a CUP, we conclude the board satisfied any requirements imposed by section (e) of the feedlot ordinance.
While relators appear discontent with the actions of the planning and zoning commission, relators failed to pursue this line of argument in their brief and we therefore decline to address the issue. See Thiele v. Stich, 425 N.W.2d 580, 582 (1988) (stating that where issue is not argued, court may deem it waived).
Land use decisions are entitled to great deference and will be disturbed on appeal only in instances where the city's decision has no rational basis.
SuperAmerica Group, Inc. v. City of Little Canada, 539 N.W.2d 264, 266 (Minn. App. 1995), review denied (Minn. Jan. 5, 1996). Because zoning laws are a restriction on the use of private property, there is a heavier burden required of those challenging the approval of a conditional use permit than on those challenging the refusal of such a permit. Board of Supervisors v. Carver County Bd. of Comm'rs, 302 Minn. 493, 499, 225 N.W.2d 815, 819 (1975). If the reasonableness of the board's decision is at least doubtful, or fairly debatable, a court will not interject its own conclusions as to more preferable actions. See Aracadia Dev. Corp. v. City of Bloomington, 267 Minn. 221, 226, 125 N.W.2d 846, 850 (1964) (stating that "[i]f the reasonableness of the action of the city council is at least doubtful, or fairly debatable, a court will not interject its own conclusions as to more preferable actions").
Community opposition to a landowner's desired use of his or her property is not a legally sufficient reason for denying a conditional use permit. Scott County Lumber Co. v. City of Shakopee, 417 N.W.2d 721, 728 (Minn. App. 1988), review denied (Minn. Mar. 23, 1988). However, "[w]hile a [decisionmaker] may not reject expert testimony without adequate supporting reasons, those reasons need not be based on expert testimony." SuperAmerica Group, 539 N.W.2d at 267.
Here, the board was presented with evidence indicating that Far-Gaze was in the middle of an area with a moderate risk of karst. The accuracy of this evidence, presented in the form of maps as part of the Geological Atlas of Rice County, was questioned by the board. The board noted that in the Far-Gaze area the conclusions reached by the geological study were based upon "topographical features only and that no soil samples or well samples were collected or analyzed during their preparation." The board apparently concluded from this that, "no evidence exists which suggests that Far-Gaze Farms' proposal would endanger the health, safety and welfare of the county's citizens." While the evidence presented may not have as much probative value as it would have if compiled using soil or well samples, the evidence embodied in the maps does appear to suggest that karst exists in the Far-Gaze area and that, therefore, the Peterson proposal might endanger the health, safety and welfare of the county's citizens. Thus, the board's conclusion that no evidence of endangerment exists is inconsistent with the record.
This does not mean, however, that the board's approval of the CUP without further study was arbitrary and unreasonable. Relators have failed to present evidence demonstrating the accuracy of the Geological Survey maps. Moreover, the record fails to show the degree of danger presented by karst, or how likely it is that a sinkhole will develop in a karst area. Finally, there appears to be no evidence on the record showing the relationship between a karst problem and public health and safety. We conclude that the reasonableness of the board's decision to approve the CUP for the feedlot without further study on karst was at least debatable. We are therefore constrained from interjecting our own conclusions as to the wisdom of granting a CUP without further study.
Relators also contend that the board's decision was arbitrary and unreasonable because the decision to grant the CUP did not take account of certain citations for sewage violations issued to the Petersons by the Minnesota Pollution Control Agency (MPCA) in the spring of 1998. There are several problems with relators' argument. First, relators fail to identify any authority for the proposition that applications for feedlots must be denied to people who have previously been cited for sewage violations. Second, the record indicates that by August 6, 1998, when the board approved the CUP, the Petersons had largely mitigated their sewage problem. It appears that the Petersons had cleaned the problem area and reseeded, installed rain-gutter, and were looking into other matters relating to the faulty sewer hook-up. Finally, this issue appears to involve credibility determinations rather than substantive health and safety concerns relating to the CUP for the feedlot. Relators have failed to demonstrate how these sewage violations, not physically connected with the feedlot, could affect health or safety issues related to the feedlot. At most, the MPCA citations might raise an inference that the Petersons were not good stewards of the land. However, several people testified that the Petersons were good stewards of the land. In any case, the board would be free to conclude that the Petersons were good stewards of the land based upon their own credibility determinations. We conclude that relators have failed to show that the board's decision to grant the CUP was arbitrary and unreasonable.
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
 An animal unit is defined as the equivalent of one heifer. Two and one-half feeder hogs make up one animal unit.
 Karst is defined by The American Heritage dictionary of the English language: New college ed. 1985, as "[a]n area of irregular limestone in which erosion has produced fissures, sinkholes, underground streams, and caverns."