This opinion will be unpublished and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

A05-717

 

 

Lake Mary Villas, L.L.C.,

Relator,

 

vs.

 

County of Douglas, Minnesota, by its Board of Commissioners,

Respondent.

 

 

Filed January 24, 2006

Affirmed

Toussaint, Chief Judge

 

Douglas County Board of Commissioners

 

 

Marcus P. Beyer, Steffens & Rasmussen, 300 Southdale Place, 3400 West 66th Street, Edina, MN 55435 (for relator)

 

Christopher D. Karpan, Douglas County Attorney, Douglas County Courthouse, 305 Eighth Avenue West, Alexandria, MN 56308; and

 

Paul D. Reuvers, Jason J. Kuboushek, Iverson Reuvers, LLC, 9321 Ensign Avenue South, Bloomington, MN 55438 (for respondent)

 

 

            Considered and decided by Toussaint, Chief Judge; Dietzen, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            In this certiorari appeal from the county’s conditional approval of relator’s applications for a conditional use permit and a preliminary plat approval, relator argues that the no-dockage condition (a) was arbitrary and capricious because the county failed to adequately explain its basis; (b) exceeded the county’s authority to regulate land use; and (c) is an unconstitutional exaction.  Because the county adequately explained its decision, did not exceed its authority, and did not violate relator’s constitutional rights, we affirm.

FACTS

Relator Lake Mary Villas, L.L.C. seeks review of a decision by the Douglas County Board of Commissioners (Board) conditionally approving a preliminary plat and conditional use permit.  The sole issue raised by relator is the propriety of a condition prohibiting a dock at the proposed lakeshore development.  

Owner and developer, Thomas Steffens, proposed a residential planned unit development (PUD) on 26.7 acres, including wetlands and shoreland of Lake Mary. He submitted applications for preliminary plat approval for the PUD and a conditional use permit (CUP) for 50 units, each with a mooring site at a centralized dock.

On March 29, 2004, the Douglas County Planning Advisory Commission (PAC) met Mike Nyberg, relator’s surveyor, on the proposed site.  Nyberg explained that the “mooring sites will be in the same place that the current one is located and a conservation easement will be placed along the shoreline.”  At the PAC meeting the following week, the public expressed concerns over the destruction of vegetation, the length of the dock, the number of boats, the wetlands, and a nesting area.

In April, the county Land and Resource Management office (LRM) made recommendations regarding the proposed CUP and preliminary plat and recognized that docks and mooring areas “must be centralized and located in areas suitable for them.”  After another public meeting, the PAC voted to approve the applications, but one week later the Board sent the matter back to the PAC for review.

Two days later, petitioners, represented by the Lake Mary Lake Association, requested an environmental assessment worksheet (EAW) for the project. The petition noted that a major concern was the proposed 50-mooring site dock extending more than 400 feet into the lake.  The Department of Natural Resource’s (DNR) Dean Beck sent a letter supporting an EAW to the Environmental Quality Board (EQB).  Subsequently, the EQB named Douglas County the responsible governmental unit, and the Board ordered that the LRM prepare an EAW. 

After the EAW review-and-comment period, relator proposed amendments to the project in a letter dated January 13, 2005; it would move the centralized dock to the north, use the least intrusive type of dock, and reduce the number of mooring sites from 50 to 25 and the number of units from 50 to 44.   On January 18, 2005, the Board made a negative declaration for an environmental impact statement.[1]  

            In February, the PAC received another letter from DNR supervisor Beck, expressing that his primary concern with the initial and revised platting of Lake Mary Villas was the proposed dock.  He concluded that a dock would be unsuitable at the site.  The PAC also received a letter from Douglas County Soil and Water Conservation District’s (SWCD’s) Jerry Haggenmiller informing it that the SWCD Board had unanimously recommended to the PAC that it deny any docking facility on the proposed plat of Lake Mary Villas.

At the March 1, 2005 PAC hearing, the CUP application failed by unanimous vote. On March 15, the Board approved the CUP with several conditions, including no dockage, and one week later, on March 22, the Board accepted “letters from Dean Beck, DNR, and Jerry Haggenmiller, SWCD, as the basis for the condition of no docks for Lake Mary Villas.”   Relator challenges the no-dockage condition in its petition for a writ of certiorari.

D E C I S I O N

I.

 

            When reviewing a county board’s decision on a writ of certiorari, “the court’s inquiry is limited to questioning whether the board had jurisdiction, whether the proceedings were fair and regular, and whether the board’s decision was unreasonable, oppressive, arbitrary, fraudulent, without evidentiary support, or based on an incorrect theory of law.”  Radke v. St. Louis County Bd., 558 N.W.2d 282, 284 (Minn. App. 1997).  This court gives great deference to a county’s land-use decision and will overturn such decisions only when there is no rational basis for them.  See SuperAmerica Group, Inc. v. City of Little Canada, 539 N.W.2d 264, 266 (Minn. App. 1995), review denied (Minn. Jan. 5, 1996).  A county has broad discretion in deciding whether to grant or deny a conditional use permit.  Haen v. Renville County Bd. Of Comm’rs, 495 N.W.2d 466, 471 (Minn. App. 1993), review denied (Minn. Mar. 30, 1993).  When a zoning ordinance authorizes a use by special permit, however, the denial of such a permit must be based on reasons of public health, safety, and general welfare or because of express language in the county’s land use plan.  Hubbard Broad., Inc. v. City of Afton, 323 N.W.2d 757, 763 (Minn. 1982). 

            Relator argues that the no-dockage condition was arbitrary because:  (1) the Board failed to explain its decision; (2) the unscientific and anecdotal comments from upset neighbors were inadequate to support the condition; and (3) the DNR fisheries supervisor’s letter is unscientific, vague, and overbroad.

            We see no merit in relator’s arguments that the Board failed to explain its decision or that it relied on public comments.  The Board expressly stated that its decision was based on “letters from Dean Beck, DNR, and Jerry Haggenmiller, SWCD.”  The one-week delay between the no-dockage decision and the statement that the letters supported the decision is not fatal.  Findings supporting a decision must be contemporaneous to avoid post-hoc justification for the decision, Hurrle v. County of Sherburne ex. rel. Bd. of Comm’rs, 594 N.W.2d 246, 250 (Minn. App. 1999), but absent any indication that the Board manufactured a justification for its decision after-the-fact, a one-week delay is not, on this record, a basis for reversing the no-dockage condition.  Clearly, the letters were part of the record prior to the Board’s decision, and the issue of dockage was given serious consideration by the Board throughout the environmental review and administrative processes.

            The reasonableness of the Board’s decision is measured by “the legal sufficiency of and factual basis for the reasons given.”  Swanson v. City of Bloomington, 421 N.W.2d 307, 313 (Minn. 1988).  The Douglas County Planned Unit Development Ordinance sets standards for docks and watercraft mooring areas and requires that they “be centralized and located in areas suitable for them.”  

Beck’s letter targeted the dock as his primary concern.  He expressly considered previous correspondence regarding the Villas, the DNR response to the EAW, the Lake Mary depth contour map, and the Douglas County Water Plan in reaching his conclusion that there was “poor site suitability.”  The DNR response to the EAW contained additional facts and analysis regarding the dock and its impact on the environment. The county water plan specifically recognized a decline in Lake Mary’s water quality.  In summary, Beck stated: “the lack of water depth, great distance to navigable depth, extensive disturbance and destruction of vegetation stands and other sensitive attributes along the entire project shoreline should be more than adequate justification to deem the site as ‘unsuitable for intended purpose.’” 

Haggenmiller’s letter expressed his opinion that natural buffers should be in place adjacent to the wetlands and Lake Mary.  He stated that the proposed dock system would first go through approximately 200 feet of cattails, with little water depth, and then 600 feet of hardstem bulrush before reaching a water depth of 3.2 feet of water 800 feet from shore.  Because the docking activity would not preserve the aquatic vegetation, which acts like sponges to absorb nutrients in the water, the dock would adversely affect water quality and animal habitat. 

            Relator argues that these letters are no better than the evidence rejected by this court in BECA, L.L.P.  v. County of Douglas ex. rel. Bd. of Comm’rs, 607 N.W.2d 459, 463 (Minn. App. 2000). A review of the letters, however, indicates that they contain significantly more than the simple statement in BECA that “any development would have an impact on aquatic life.”  Id. at 464.  Here, the authors of the letters are “experts,” writing in their representative capacities from agencies responsible for water and fisheries and they provide in their letters descriptions of the specific location and water depths of the proposed dockage, the aquatic vegetation, and the impact of the docks and dock activity on the flora and fauna of the area.  The letters also contain references to additional supporting data and sources, and it may reasonably be inferred that both experts have knowledge of the subject matter and other sources of relevant data and facts beyond that specifically provided in the letters.  

            As the basis for the Board’s decision to allow no dockage, these letters are sufficiently scientific and based on concrete personal observations.  Accordingly, they were legally sufficient and the Board did not act arbitrarily when it relied on them to make its decision that the proposed dockage was not suitable for the site. 

II.

 

“The party seeking review on appeal has the burden of proving that the agency has exceeded its statutory authority or jurisdiction.”  Lolling v. Midwest Patrol, 545 N.W.2d 372, 375 (Minn. 1996) (citing Markwardt v. State, Water Res. Bd., 254 N.W.2d 371, 374 (Minn. 1977)).

We see no merit in relator’s contention that the Board exceeded its statutory authority by imposing the no-dockage condition.  Douglas County’s shoreland PUD ordinances mirror those contained in the Minnesota Rules.  Compare Douglas County, Minn., Zoning Ordinance § IV.D.2.b(4)(c) (2003) with Minn. R. 6120.3800, subp. 5.B(3)(c) (2005).  Relator does not challenge the validity of the regulation.  Instead, it argues that the regulation 1) does not authorize the absolute prohibition of docks and 2) does not authorize the county to “single out one riparian user for dramatically disparate treatment from his neighboring riparian owners.” 

The interpretation of an existing ordinance is a question of law for the court.  Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn. 1980).  Relator does not argue that the ordinance is ambiguous, it simply argues that it does not contain authority for the Board to prohibit docks.  The ordinance states:

[D]ocks and watercraft mooring areas must be centralized and located in areas suitable for them.  Evaluation of suitability must include consideration of land scope, water depth, vegetation, soils, depth to groundwater and bedrock, or other relevant factors.  The number of spaces provided for continuous beaching, mooring, or docking of watercraft must not exceed one for each allowable dwelling unit or site in the first tier (notwithstanding existing mooring sites in an existing commercially used harbor).  Mooring sites can be limited by the Planning Advisory Commission and the County Board of Commissioners.

 

Douglas County, Minn., Zoning Ordinance, § IV.D.2.b(4)(c).  The ordinance creates a standard of “suitability” and requires that docks must be centralized and “located in areas suitable for them.”  Conversely, docks must not be located in areas “unsuitable” for them.  The ordinance provides that suitability must be evaluated by consideration of relevant factors.  The ordinance, thus, clearly allows for prohibition of docks in unsuitable areas upon consideration of relevant factors.

Relator’s argument that the Board’s action pursuant to the ordinance was discriminatory is not accompanied by facts or legal authority.  The brief contains no citation to the record showing the alleged disparate treatment.  See Ganguli v. Univ. of Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994) (stating that this court does not address allegations unsupported by legal analysis or citations).   Therefore, we decline to address relator’s discrimination argument.

III.

            Relator argues that the prohibition of docks offends the United States and Minnesota Constitutions under the well-settled doctrine of “unconstitutional conditions.”

There is no question that the no-dockage condition imposed by the Board affected relator’s riparian rights.  Riparian rights include the right to build and maintain, for private or public use, wharves, piers, and landings on the riparian land and extending into the water.  State v. Korrer, 127 Minn. 60, 71-72, 148 N.W. 617, 622 (1914). The riparian owner “has a right to make such use of the lake over its entire surface, in common with all other abutting owners, provided such use is reasonable and does not unduly interfere with the exercise of similar rights on the part of other abutting owners.”  Johnson v. Seifert, 257 Minn. 159, 169, 100 N.W.2d 689, 697 (1960). 

Whether a taking has occurred is a question of law which this court reviews de novo.  Alevizos v. Metro. Airports Comm’n, 298 Minn. 471, 484, 216 N.W.2d 651, 660-61 (1974).  When riparian rights are involved, they are “subordinate to the rights of the public and subject to reasonable control and regulation by the state.”   State v. Kuluvar, 266 Minn. 408, 418, 123 N.W.2d 699, 706 (1963).   For a land use regulation to constitute a compensable taking, it must deprive the property of all reasonable use.  Hubbard, 323 N.W.2d at 766 (quoting McShane v. City of Faribault, 292 N.W.2d 253, 257 (Minn. 1980)); see also Thompson v. City of Red Wing, 455 N.W.2d 512, 517 (Minn. App. 1990) (stating that, “[w]here ‘secondary uses’ remain, no taking has been established”). 

Unlike the cases relied on by relator, Dolan v. City of Tigard, 512 U.S. 374, 377, 114 S. Ct. 2309, 2312 (1994) (city conditioning approval of building permit on the dedication of a portion of the owner’s property for flood control and traffic improvements), and Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 828, 107 S. Ct. 3141, 3144 (1987) (commission requiring as condition to building permit that owners transfer easement across their beachfront property to public), the action taken by the Board does not require relator to transfer any rights to the County.  It also does not prevent all reasonable use of the property.  Relator continues to have alternative methods to access the lake and has stated that it could develop this property with single family residences with docks.  Therefore, relator fails to present a basis for its taking claim.

Affirmed.