This opinion will be unpublished and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


In the Matter of Russ Livingood.

Filed August 25, 1998
Reversed and remanded; motion denied
Willis, Judge

Renville County Board

Gary W. Koch, Michael S. Dove, Richard F. Prim, Gislason, Dosland, Hunter & Malecki, PLLP, One South State Street, P.O. Box 458, New Ulm, MN 56073 (for relator Livingood)

Thomas J. Simmons, Renville County Attorney, Benjamin H. Frisch, Assistant County Attorney, P.O. Box D, Olivia, MN 56277 (for respondent Renville County Board)

Considered and decided by Willis, Presiding Judge, Huspeni, Judge, and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N


Relator Russell Livingood appeals respondent Renville County Board's denial of his application for a conditional use permit to build new barns for his hog farm. We reverse and remand with directions to issue the permit.


Relator Russell Livingood is a family farmer who has raised hogs on his farm in Renville County since 1972. His land is zoned A-1 agricultural; under the applicable county ordinance, "construction or expansion [of a livestock facility] to a total of over 300 animal units" requires a conditional use permit.

In September 1997, Livingood applied for a conditional use permit to replace his hog barn with two "total confinement" barns that together would hold 960 animal units, with manure to be stored in a concrete pit under the barns. Livingood built his present barn in 1976, and the permit the Minnesota Pollution Control Agency (MPCA) issued to him for the barn at that time is for 240 animal units. But Livingood stated at the planning commission meeting that he has historically kept more than 240 animal units because he keeps additional hogs in outdoor lots; he said that the new buildings would permit an increase of 140 animal units over historical levels. He added that "[a]nybody who knows anything about the hog business knows that a pitted barn is going to smell less than outdoor lots even with more animal units." Livingood received approval for the expansion from the MPCA, contingent on his development of an odor management plan.

At the planning commission meeting on November 18, 1997, Kristi O'Neill, a neighbor of Livingood, stated that she had letters from three doctors to the effect that the odor from the barns would present risks to the health of her nine-year-old son, who suffers from numerous physical and mental disabilities. According to the transcript of the planning commission meeting, the chairman of the commission received the letters, but they are not included in the record. Without discussion on the record, the planning commission voted to recommend denial of the permit based on article 4.032 of the county zoning ordinance, which states that no permit will be granted unless "it will not, under the circumstances of the particular case, be detrimental to the health, safety, morals and welfare of the people residing in and working in the area."

On December 16, 1997, the Renville County Board voted to deny Livingood's application. Because of a videotaping equipment malfunction, there is no transcript of this meeting in the record. The minutes state that the board voted to deny the permit "[u]pon the recommendation of the Planning Commission," with one commissioner dissenting on the ground that the commission had not considered "conditions that would have addressed the medical issue, the applicant's livelihood, and the number of animal units that would be increased." The board issued an order denying the application, stating only that the denial was "[b]ased on health risks" and reciting the language of article 4.032. Livingood appeals by writ of certiorari, and we reverse and remand for issuance of the permit.


I. Motion to Supplement the Record

After oral argument, the county moved to "correct or supplement" the record by including the three letters from doctors to which O'Neill referred at the planning commission meeting. In support of this motion, the county's attorney submitted an affidavit stating that O'Neill told him that, at some undisclosed time, she had sent the letters to the county board members. The record indicates that the members of the planning commission had received the letters, but because of the absence of a transcript, we have no information as to whether the county board received the letters and simply neglected to file them, as the county suggests. Cf. Stanek v. A.P.I., Inc., 474 N.W.2d 829, 832 (Minn. App. 1991) (considering documents that parties agreed were originally filed and before trial court but were omitted from the record due to administrative error), review denied (Minn. Oct. 31, 1991).

In general, this court may not base its decision on matters outside the record on appeal and may not consider matters not produced and received in evidence below. Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988). If the motion to supplement the record had been made before briefing and oral argument, this court's normal procedure would have been to submit to the county board the question of whether the letters were truly part of the record below. See Minn. R. Civ. App. P. 110.05 (stating that any difference between parties as to correctness of record will be submitted to trial court). But such a request for clarification would now be untimely. In certiorari appeals, the government body bears the burden of providing a record sufficient to support this court's review. See Dokmo v. Independent Sch. Dist. No. 11, 459 N.W.2d 671, 676 (Minn. 1990) (stating that school board has burden to provide record sufficient to support teacher's termination). Because we are unable to determine whether the letters were before the county board and the county did not timely raise its claim that they were inadvertently omitted from the record, we conclude that the letters are outside the record on appeal.

This court may consider evidence outside the record on appeal if it is (1) documentary, (2) essentially uncontroverted, and (3) is not offered to support a reversal. In re Objections & Defenses to Real Property Taxes, 335 N.W.2d 717, 718 n.3 (Minn. 1983). The letters here are documentary evidence offered in support of an affirmance, but to be admissible on appeal, such evidence must be "of a conclusive and incontrovertible nature." See Chahla v. City of St. Paul, 507 N.W.2d 29, 33 (Minn. App. 1993), review denied (Minn. Jan. 20, 1994). While the content of the letters is not in question, Livingood disputes their probative value. Cf. id. (declining to accept new evidence proffered by respondent where appellant disputed issues raised); Plowman v. Copeland, Buhl & Co., Ltd., 261 N.W.2d 581, 583 (Minn. 1977) (denying motion to supplement record with documents whose meaning parties disputed). Moreover, because of the county's untimely submission of the letters, Livingood had no opportunity in his brief or at oral argument to address the issues they raise. Cf. Opp v. LaBine, 516 N.W.2d 193, 195 (Minn. App. 1994) (addressing issue on merits where parties disagreed as to whether it had been argued in district court and no transcript was ordered, where issue was not dependent on disputed facts and was briefed by both parties), review denied (Minn. Aug. 24, 1994). We conclude that the letters do not meet the criteria for appellate admission of new evidence.

We therefore deny the county's motion to supplement the record. But we note that in any event the letters are written in opposition to a "proposal to build a hog farm near [the O'Neills'] homestead," "plans to allow a hog farm to be built in close proximity to [the O'Neills'] home," and "the possibility of construction of a hog barn near the family house"; each of the writers appears unaware that the child already lives in close proximity to a hog farm. Indeed, one of the letters was written more than a year before Livingood's permit application, apparently in opposition to a different proposed feedlot. None of the letters states that the child has suffered any harm as a result of Livingood's current facility. In view of the county's failure to provide any basis for rejecting Livingood's uncontroverted statements that his proposed barns would produce less odor than his current facility, we conclude that consideration of the letters would not change our decision in this case.

II. The Merits

In a certiorari appeal from a county's denial of a conditional use permit, we consider whether the decision was "'arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it.'" Molnar v. County of Carver Bd. of Comm'rs, 568 N.W.2d 177, 181 (Minn. App. 1997) (quoting Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn. 1992)). Because of deference to local authority in matters of land use, we will reverse only if the county's decision "has no rational basis." Id.

Under Molnar, we apply to certiorari zoning appeals from county boards the same standards we would apply to a zoning appeal from a district court. See id. (applying in certiorari appeal standards stated in SuperAmerica Group, Inc. v. City of Little Canada, 539 N.W.2d 264, 266 (Minn. App. 1995) (appeal from district court), review denied (Minn. Jan. 5, 1996)). When a county states its reasons for denying a conditional use permit, the permit applicant has the burden of persuading the appellate court that the reasons for the denial either are legally insufficient or are not supported by the record. Hubbard Broadcasting, Inc. v. City of Afton, 323 N.W.2d 757, 763 (Minn. 1982). This court limits its review to the reasons stated for the denial, but only one of those reasons need satisfy the rational-basis test. Trisko v. City of Waite Park, 566 N.W.2d 349, 352 (Minn. App. 1997), review denied (Minn. Sept. 25, 1997). An application for a conditional use permit may be denied only for reasons relating to the public health, safety, or welfare or to incompatibility with a comprehensive zoning plan. SuperAmerica, 539 N.W.2d at 267.

Here, the county board's sole finding is that granting the permit would create "health risks." At oral argument, the county's counsel stated that the finding referred to risks to the health of O'Neill's son. We therefore do not consider the arguments in the county's brief with regard to claimed groundwater contamination risks and nuisance odors. See Trisko, 566 N.W.2d at 352.

Livingood does not dispute that a health risk, if established, provides a legally sufficient basis to deny a permit. See SuperAmerica, 539 N.W.2d at 267. But he argues that the county board's conclusory finding is insufficient and that in any event the record does not support the county's claim that expansion of the hog barns would present a health risk to O'Neill's son. We agree with both contentions.

To facilitate judicial review, a zoning body must "have the reasons for its decision reduced to writing and in more than just a conclusory fashion." Honn v. City of Coon Rapids, 313 N.W.2d 409, 416 (Minn. 1981). This court on occasion has upheld a zoning decision on the ground that a rational basis existed despite conclusory findings. See City of Mounds View v. Johnson, 377 N.W.2d 476, 479 (Minn. App. 1985), review denied (Minn. Jan. 23, 1986). The supreme court has also considered the sufficiency of a finding in the context of the "cumulative effect" of the testimony and discussion in the record. Earthburners, Inc. v. County of Carlton, 513 N.W.2d 460, 463 (Minn. 1994). But the supreme court has reversed and remanded where a city's findings failed to address its reasons for accepting disputed testimony and for rejecting the applicant's offers of accommodation, leaving the reviewing court "in the dark as to what the city council made of all this evidence." White Bear Rod & Gun Club v. City of Hugo, 388 N.W.2d 739, 742 n.4 (Minn. 1986). Here, the county provided no explanation for rejecting Livingood's offers to accommodate odor concerns or his testimony that the proposed total confinement barns would produce less odor than his present, partially open, facility, even with more animal units. The absence of adequate findings creates a presumption that the county board's actions were arbitrary or capricious and shifts the burden of proof to the county board. Id. at 742.

Absent the three letters from doctors, which we have already noted would not change our decision even if they were properly before us, the county has provided no evidence in support of its claim of a health risk to O'Neill's son other than O'Neill's extremely brief statement at the planning commission meeting. O'Neill does not claim that the child has suffered any harm as a result of proximity to Livingood's current facility. As noted, there is nothing in the record to contradict Livingood's testimony that the proposed barns will produce less odor than his present operation or his testimony that he has never received a complaint about odor in 25 years of hog farming. The record also contains no evidence that the county board considered whether the imposition of additional conditions might alleviate any odor concerns. See Minnetonka Congregation of Jehovah's Witnesses, Inc. v. Svee, 303 Minn. 79, 85-86, 226 N.W.2d 306, 309 (1975) (citing failure to consider or suggest conditions as evidence that permit denial was arbitrary).

We conclude that the record contains insufficient evidence that Livingood's proposal presents a risk to the health of O'Neill's son to justify denying the permit on that basis. We therefore reverse the county board's decision and remand with directions to issue the permit, subject to the imposition of reasonable conditions.

Reversed and remanded; motion denied.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, 10.