This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1898

 

Kenneth Steiger,
Relator,

vs.

Douglas County Board of Commissioners, et al.,
Respondents,

Gary J. Botzet,
Respondent,

Diane E. Botzet,
Respondent.

 

Filed August 9, 2005

Affirmed

Minge, Judge

 

Douglas County Board of Commissioners

Application No. 50

 

James P. Peters, Karna M. Peters, Peters & Peters, PLC, 507 North Nokomis Street, Suite 100, Alexandria, MN 56308 (for relator)

 

Jay T. Squires, Ratwik, Roszak & Maloney, P.A., 300 U.S. Trust Building, 730 Second Avenue South, Minneapolis, MN 55402 (for respondents Douglas County)

 

Gary and Diane Botzet, 7533 Johnson Road Northeast, Carlos, MN 56319 (pro se respondents)

 

            Considered and decided by Halbrooks, Presiding Judge; Minge, Judge; and Parker, Judge.*

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

 

Relator Kenneth Steiger filed a writ of certiorari with this court challenging the decision by respondent Douglas County to grant respondents Gary and Diane Botzet a conditional use permit (CUP), for a feedlot.  Steiger argues that the county erred because the CUP application did not include a required map and because a proper hearing was not conducted.  Steiger also suggests that a dwelling is located within 1,000 feet of the proposed feedlot, in violation of the requirements of the county ordinance.  Because Steiger failed to timely raise his map objection, he waived that argument.  Because the county Planning Advisory Commission conducted a hearing, made findings, and a record exists and because Steiger did not raise legal or systemic objections to the grant of the Botzet CUP, we affirm.  Respondent Douglas County requests that certain statements in Steiger’s briefs be stricken.  Because this challenge was not raised in a proper motion and because the statements do not affect our decision, we deny the county’s request.

FACTS

 

In July 2004, respondents Gary and Diane Botzet filed a conditional use permit (CUP) application for a feedlot for 68 animal units with the planning office in Douglas County.  The Douglas County ordinances require a “Certificate of Compliance” and a “Conditional Use Permit” for all feedlots with more than 50 animal units.  Douglas County, Minn., Zoning Ordinance § V(P)(4)(a) (2005).  The ordinance provides that applicants for such certificates and permits are required to submit an application that includes:

            A map or aerial photo showing the dimensions of the feedlot, showing all existing homes, buildings, lakes, ponds, water courses, wetlands, roads, wells, contour and surface water drainage within 1,000 feet of the feedlot.

 

Id. § V(P)(4)(b)(1).  Among other setback requirements, the ordinance requires that this size feedlot be more than 1,000 feet from a “neighboring Residential Dwelling not owned by family or employee of animal feedlot.”  Id. § V(P), Table 1.  The ordinance further prohibits building or placing a residential dwelling within 1,000 feet of such a feedlot  Id. § V(P)(5)(a). 

The Botzets submitted a sketch of the proposed feedlot with their application.  The sketch shows where the feedlot will be located in relation to the Botzets’ house and machine shed.  The application indicates no maps were submitted.  The record on appeal includes two aerial photographs: one appears to be of the Botzets’ farm, and the second is an aerial photograph of a larger area, with the site of the proposed feedlot located in the far southwest corner.  Because it appears that the southerly and westerly border of this aerial photograph is less than 1,000 feet from the feedlot site, it is not possible to determine from the photographs in the record whether there are buildings within 1,000 feet.

The Douglas County Land & Resource Management Department (Department) prepared a six-page report on the Botzets’ CUP application that concluded that all requirements, including setbacks, were met and recommended approval with three conditions.  These conditions were: (1) no more than 68 animal units; (2) the operation be limited to the site shown in the drawing; and (3) proper waste disposal be used.  On August 17, 2004, the Douglas County Planning Advisory Commission (PAC) held a public hearing on the CUP application.  The record indicates that relator Kenneth Steiger appeared and objected to the CUP application at the hearing because of “a need for future development” and because Steiger “would prefer the location [of the feedlot] be moved to the southeast corner of [Botzets’ farm].”  The PAC voted unanimously to recommend approval of the CUP subject to the three conditions identified by the Department.  The PAC made the following findings of fact: “1. The use is compatible with the surrounding area as this property is located within [an] agriculturally zoned area.  2. The use is in conformance with the Land Use Plan of the County because all requirements will be met with this operation.” 

            One week later, the Douglas County Board of Commissioners (Board) met and considered Botzets’ CUP application.  Steiger claims that he was present at the Board meeting, but he did not make any comments at the meeting.  The minutes do not reflect whether Steiger was present.  The Board voted unanimously to accept the PAC’s recommendation and approve respondents’ CUP subject to the same three conditions that had been suggested by the Department.  Relator Steiger filed a writ of certiorari with this court to challenge the Board’s decision to approve the CUP.  Respondent Douglas County responded; respondents Botzets have not participated in the appeal.

 

D E C I S I O N

I.

 

            The first issue we examine is whether Steiger has standing to bring this appeal.  The Douglas County, Minn., Zoning Ordinance § VI(G)(2)(b) (2005), provides that “any person or persons, jointly or severally, aggrieved by any decision” of the county board may appeal the decision.  A person is aggrieved when a county’s action adversely “operates on his rights of property or bears directly upon [the person’s] personal interest.”  Stansell v. City of Northfield, 618 N.W.2d 814, 819 (Minn. App. 2000) (quotation omitted), review denied (Minn. Jan. 26, 2001).  In his brief Steiger represents that he owns land within 1,000 feet of the proposed feedlot.  According to the zoning ordinance, the Board’s approval of the Botzets’ feedlot CUP prevents Steiger from building new residences on his land within 1,000 feet of the feedlot or selling portions of his land to developers.  We conclude that Steiger is an “aggrieved person” and does have standing.

II.

The second issue is whether the Board erred by granting the CUP when the Botzets’ application failed to include a map showing the area within 1,000 feet of the site of the proposed feedlot.  Steiger argues that the ordinance prohibits feedlots within 1,000 feet of an existing dwelling, suggests that the missing map would have shown the dwelling within 800 feet of the proposed feedlot, and he argues that the failure to include a map requires reversal of the decision to issue the CUP.[1]  Respondent Douglas County argues that Steiger failed to object to the lack of a map in the proceedings before the PAC or the Board, that the Department’s staff determined that no dwelling existed within 1,000 feet and communicated that determination in writing to the PAC before the permit was issued, that the PAC found that all legal requirements were met, and that Steiger’s suggestions of an existing dwelling was outside the record and was factually misleading.

            As a general rule, failure to raise an issue in a trial court precludes raising that issue for the first time on appeal.  See In re Application of Minnegasco, 565 N.W.2d 706, 713 (Minn. 1997) (explaining that issues not raised in earlier proceedings are waived).  That same principle exists in judicial review of quasi-judicial decisions of administrative agencies and of local government.  See Hoskin v. City of Eagan, 632 N.W.2d 256, 258 (Minn. App. 2001); Graham v. Itasca County Planning Comm’n, 601 N.W.2d 461, 468 (Minn. App. 1999).

            In this case, the minutes of the PAC indicate that Steiger “opposed the [Botzets’ CUP] application due to the need for future development and would prefer the location be moved to the southeast corner of the property.”  Steiger apparently wanted the feedlot more than 1,000 feet from his farm so that it would not interfere with construction or development on his land.  There is no indication that he objected to the lack of a map or to the location of a dwelling.  The application fails to include a map showing all improvements within 1,000 feet.  Certainly this is a significant omission.  However, if this issue had been presented to the PAC, it could have been easily addressed and probably resolved.  Raising the issue for the first time on appeal blindsides the respondents.  It does not allow the PAC to address this question.

            Steiger complains that the record of the proceeding before the PAC is so abbreviated that his full objection is not reflected and that we should not conclude that he failed to raise the map issue or the existence of a dwelling.  Steiger has not made any offer of proof that he raised these issues and we decline to consider the merits of this argument on appeal or to remand without at least an offer of proof that Steiger did indeed raise the argument and that the record erroneously fails to include that information.

            Although we are not obliged to reach the significance of the failure to include the map, we will address it to assure the parties that their case is fully considered.  No Minnesota caselaw has been brought to our attention regarding the significance of an incomplete application for a conditional-use permit.  Courts in other jurisdictions have determined that immaterial omissions in land-use permit applications do not affect the validity of a county board’s approval of the application when no prejudice is demonstrated.  See Allen v. Bd. of Zoning Appeals for the City of Noblesville, 594 N.E.2d 480, 484-85 (Ind. Ct. App. 1992); Hudson Props., Inc. v. City of Westwood, 310 P.2d 936, 937 (Kan. 1957); Heath v. Mayor and City Council of Baltimore, 49 A.2d 799, 801 (Md. 1946); Imbergamo v. Barclay, 352 N.Y. S.2d 337, 342-43 (N.Y. Supp. 1973). 

            In this case, we cannot conclude that the lack of a map is immaterial.  The Douglas County ordinance requires that the PAC consider not only dwellings, but also other buildings, roads, lakes, ponds, water courses, wetlands, wells, and surface drainage within a 1,000-foot area around the feedlot.  The significance of such matters in feedlot locations is well known.  These are not immaterial considerations.  However, failure to include a map with the application could be corrected during the proceeding and is a failure that the county could waive if the relevant information is otherwise provided and considered.  Department staff comments on the Botzets’ application state that: “The feedlot will be at least 1,000 feet away from dwellings.”  It is unclear whether the staff actually visited the site, checked the surrounding area, relied on maps, spoke from memory, or made the statement without any foundation.  In this case the sources of information that could support that statement are easily available, the defect in the application could have been cured and waived, the record contains a statement addressing the fact in question, and the objection is first raised on appeal.  Under these circumstances, we decline to find that the omission of a map is fatal to the CUP.[2]     

III.

The third issue is whether the issuance of the Botzets’ CUP is invalid because the nature and record of the Douglas County proceedings fail to meet the requirements of law and are so lacking in findings as to preclude effective judicial review.  Steiger asserts the following as defects in the proceedings: the lack of findings, a cobbled-together record that provides only minimal information about the proceeding, and the failure of the Board to hold a hearing.

            Decisions made by a county board regarding a CUP are quasi-judicial and reviewable by a writ of certiorari.  Picha v. County of McLeod, 634 N.W.2d 739, 741 (Minn. App. 2001).  Steiger and the county agree on the standard of review: we independently review the decision to grant a CUP to determine whether a reasonable basis existed for the decision or whether the county board acted unreasonably, arbitrarily, or capriciously.  Schwardt v. County of Watonwan, 656 N.W.2d 383, 386 (Minn. 2003).  “We have traditionally given CUP approvals more deference on review than CUP denials.”  Id. at 389 n.4.

A county board may approve a CUP if the applicant shows that all standards and criteria in the county ordinance will be satisfied.  Minn. Stat. § 394.301, subd. 1 (2004).  To demonstrate that the county board acted unreasonably, arbitrarily, or capriciously, relator must establish that the proposed variance did not meet one of the standards of the ordinance and that the board abused its discretion in granting the CUP.  Schwardt, 656 N.W.2d at 387; Haskin, 632 N.W.2d at 258.  An order by a county board granting a CUP demonstrates that the board concluded that the proposal satisfies the zoning ordinances’ conditions.  Id. at 389.

            In contested cases in which a CUP is denied or the county board is on notice of specific legal objections to the CUP, the county board must record the reasons for its decision in more than a conclusory manner.  See Schwardt, 656 N.W.2d at 389 (contentions in some cases are so compelling as to require explanation); Zylka v. City of Crystal, 283 Minn. 192, 198, 167 N.W.2d 45, 50 (Minn. 1969) (where permit is denied, there should be reasons supplied or findings of fact made); Picha, 634 N.W.2d at 742 (when denying CUP application, county board should at a minimum record reasons for its decision).  But express written findings are unnecessary when the county board grants a CUP and the county board has no notice of specific legal objections because “the decision-making body has implicitly determined that all requirements for the issuance 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); see also Corwine v. Crow Wing County, 309 Minn. 345, 352, 244 N.W.2d 482, 486 (Minn. 1979), overruled on other grounds by N.W. College v. City of Arden Hills, 281 N.W.2d 865 (Minn. 1979); 4 Kenneth H. Young, Anderson’s American Law of Zoning § 22.41, at 119-20 (4th ed. 1997).  The Board’s action of approving the PAC’s recommendation may provide sufficient support for granting a CUP if the record of the PAC’s hearing or the PAC’s report contains a sufficient statement of the reasons to grant the CUP.  Sunrise Lake Ass’n, Inc. v. Chisago County Bd. of Comm’rs, 633 N.W.2d 59, 61 (Minn. App. 2001).  “[T]he county should not have to find negatively that alleged failures to meet requirements are without merit.”  Schwardt, 656 N.W.2d at 389 (quotation omitted).

In Sunrise Lake, we concluded that the county’s grant of a CUP was arbitrary and capricious because, in part, the county board did not provide adequate reasons for granting the CUP.  633 N.W.2d at 65.  But Sunrise Lake is distinguishable from this case.  In that case, the Chisago County board was faced with a legal question of whether a proposed seasonal recreation park would contain “manufactured homes.”  Id. at 60.  The ordinance prohibited manufactured home parks in the area.  Id. at 62.  The nature of the housing units was contested and the planning commission was divided on whether to issue the CUP.  Id. at 60-61.  In Sunrise Lake, the minutes of the county board meeting stated only that the county granted the CUP based on the board’s acceptance of the planning commission’s report and recommendation.  Id. at 61.  The planning commission’s report and recommendation erroneously relied on what this court concluded was an irrelevant statutory provision.  Id. at 62.  In this context this court concluded that the county board’s reliance on the planning commission’s findings were insufficient to explain the decision or permit review.  Id. at 61-62.  Here, the county board’s acceptance of the PAC’s recommendation provided a sufficient basis to grant the CUP.  The PAC’s recommendation was based on an ordinance that was not in dispute and was supported by findings that the requirements of the ordinance were met.

            Steiger also challenges the adequacy of the hearing process in this case.  In Douglas County, the ordinance requires that the PAC hold a hearing for conditional use permits.  Although the final decision is made by the Board and the appeal to this court is from the Board, there is no provision in the ordinance or the statutes requiring a hearing by the Board itself.  The only detailed instruction in the ordinance or the statute about the PAC hearing describes the notice that must be given.  See Douglas County, Minn., Zoning Ordinance § VI(D) – (E) (2005).  Otherwise, the details of what is necessary to comply with the requirement for a hearing are lacking.  Constitutional due process requires that there be notice, an impartial decisionmaker, an opportunity to present evidence, access to the opposing evidence, counsel if desired, a decision based on the law and the facts, and an explanation of the basis for the decision.  See Mathews v. Eldridge, 424 U.S. 319, 325 n.4, 96 S. Ct. 893, 898 n.4 (1976); Goldberg v. Kelly, 397 U.S. 254, 266-71, 90 S. Ct. 1011, 1019-22 (1970).[3]

            Here, there is a minimal record of the PAC hearing.  There are minutes that indicate that Steiger objected to the Botzets’ CUP on the grounds it would interfere with development of his land and urged that the feedlot be relocated to a corner of the Botzets’ farm to avoid that impact.  Someone spoke in favor of the feedlot.  A six-page staff report with recommendations was apparently provided to the PAC.  Then the PAC approved the CUP with two findings and three conditions.  Steiger had an opportunity to be heard by the PAC.  The Board proceeding essentially appears to be a ratification of the PAC decision.  Other than his limited objection to his inability to develop land, neither Steiger nor anyone else raised any objection to any aspect of the Botzets’ CUP application.  Minimal discussion occurred.  The record of the county board meeting does not specify the reasons supporting the county board’s decision to grant the CUP, except that the Board accepted the recommendation of the PAC and approved the CUP with the same three conditions. 

            In reviewing local government matters that have not been the subject of serious dispute, this court should avoid imposing requirements regarding a record and detailed findings in addition to those mandated by statute or ordinance.  The detail required for effective judicial review depends on the nature and extent of the dispute.  The more significant the dispute, the more detailed the record and findings should be.  Unless a party makes a significant objection before the governmental body, he or she cannot expect this court to impose substantial, formal requirements.  If a written or oral objection indicates a serious factual controversy or legal shortcoming, it is significant.  Absent such an objection, the local body ought to be able to consider matters on what would be comparable to a default calendar in the courts.  Steiger does not claim to have made a specific objection to the CUP other than that he wanted the feedlot moved to another location on Botzets’ farm so it would not affect development of his land.  This does not present a legal dispute or serious factual controversy.

Steiger has not shown that the CUP, the PAC action, or the Board action violates the county ordinances or statute.  There is no showing that the PAC failed to consider all relevant evidence when deciding to grant the CUP or that the decision was arbitrary.  See Schwardt, 656 N.W.2d at 389.  In the absence of a showing that the procedural requirements were violated by the issuance of the Botzets’ CUP, we affirm. 

VI.

            In its brief, the county asks us to strike all references in Steiger’s brief to a residence or dwelling within 800 feet of the proposed feedlot because nothing in the administrative record shows that such a residence exists.  The correct procedure to object to the portions of a party’s brief that are not supported by the record is to file a motion to strike the unsupported portions.  See Minn. R. Civ. App. P. 127 (stating that “an application for an order or other relief shall be made by serving and filing a written motion for the order or relief”).  Here, the county failed to file any motion to strike.  Because the county did not file a motion to strike and because we do not consider the offending statements in Steiger’s brief, we deny the county’s request.

Affirmed.