This opinion will be unpublished and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

A05-1946

 

 

Ricky Lee Edling, et al.,
Relators,

vs.

Isanti County, et al.,
Respondents.

 

 

Filed July 3, 2006

Affirmed

Halbrooks, Judge

Dissenting, Minge, Judge

 

 

Isanti County Board of Commissioners

 

Edward J. Laubach, Jr., Christopher W. Harmoning, Heather I. Olson, Gray, Plant, Mooty, Mooty & Bennett, P.A., 1010 West St. Germain, Suite 600, St. Cloud, MN  56301 (for relators)

 

Thomas P. Carlson, Nigel H. Mendez, Carlson & Soldo, P.L.L.P., 1052 Centerville Circle, Vadnais Heights, MN  55127; and

 

Jeffrey R. Edblad, Isanti County Attorney, 555 Eighteenth Avenue Southwest, Cambridge, MN  55008 (for respondents)

 

 

            Considered and decided by Halbrooks, Presiding Judge; Kalitowski, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            In this certiorari appeal, relators argue that the county’s revocation of a conditional-use permit was defective because the county failed to make adequate findings supported by the record and because the relators were denied due process of law.  We affirm.

FACTS

            Relator Ricky Lee Edling applied for a conditional-use permit (CUP) from the Isanti County Planning Commission for certain property located in Stanford Township.  On the application submitted to the county, Edling indicated that he was seeking a “mining & excavating” CUP for an area consisting of approximately 114 acres.  Edling also submitted a drawing detailing a proposed pond excavation.  Mike Mueller, a hydrologist from the Minnesota Department of Natural Resources (DNR), submitted a letter to the county stating his opinion that Edling’s request to mine earthen materials met certain Environmental Assessment Worksheet (EAW) categories provided in the Environmental Quality Board’s rules, Minn. R. 4410.4300, subps. 12B, 27B (2005).  As a result, Mueller recommended that the CUP request be tabled pending further determination of the need for an EAW.  Mueller further indicated that he wanted to schedule a meeting with Edling and the county zoning administrator at the property.

            Edling’s application for a CUP came before the planning commission on January 14, 1999.  In response to Mueller’s concerns, the commission tabled action on the permit application until after the meeting between Edling, the zoning office, and the DNR.  The issue was again before the planning commission on February 11, 1999.  The minutes from the meeting reveal that  

            Mr. Edling would like to dig ponds on his property and mine the black dirt.  This request was at the last meeting and Mike Mueller, DNR, had some concerns with the depth of the ponds and the total area to be used.  Mike Mueller and Joe Basta [Isanti County Zoning Administrator] met out on the site with Mr. Edling and reviewed the project.  The ponds will be under 10’ deep and Mr. Edling will be using less than 40 acres total.  After the site visit, Mike Mueller does not have a problem with this request. 

 

The planning commission then approved the CUP application subject to the conditions that there would not be any filling of wetlands and that all spoil would go on the high ground. 

            Relator Universal Enterprises of Mid-Minnesota Inc. entered into a five-year lease and gravel-mining agreement with Edling on May 30, 2005.  The agreement granted Universal the exclusive right to mine and remove gravel from Edling’s property. 

            After mining began, neighbors complained to the county about noise and dust coming from the area.  On June 7, 2005, Holly Nelson, Isanti County Zoning Office Compliance Technician, sent Edling a letter stating that Edling’s CUP was granted to mine black dirt from his ponds and that an additional CUP would be required “to mine any gravel, crush or have it leave the site.”  Edling responded by letter, noting that he was granted a CUP for the mining of minerals, sand, gravel, peat, and black dirt and that he believed that he was following the CUP conditions.

            Both Nelson and the Chief Deputy Isanti County Attorney subsequently visited the site, observed a large-scale mining operation, and concluded that there were numerous problems with it, including “noise, dust, hours of operation, safety, location and impact upon the roads and environment.”  In a letter dated June 30, 2005, the Isanti county attorney’s office informed Edling that the CUP was granted with “the paucity of conditions” due to Edling’s representations to the planning commission during the CUP application process.  The letter noted that Edling had assured the planning commission that he was going to dig a few ponds on his property and that they would not be more than 10 feet deep.  The chief deputy county attorney advised Edling that the site had become a nuisance and that an EAW was required because of the nature and scope of the operation. 

            The county received approximately 65 written complaints from Edling’s neighbors.  On July 15, 2005, Nelson conducted a second site inspection.  She observed three large mining pits with depths exceeding 35 feet and several piles of sand and gravel more than 50 feet high.  There were large trucks hauling materials and a substantial amount of associated dust and noise.  On July 26, 2005, a Minnesota Pollution Control inspector visited Edling’s property.  The inspector noted that a Minnesota Pollution Control Agency permit and storm-water-prevention plan was required before starting an operation of its size and found numerous violations concerning the operation of the site activity.  The Isanti county attorney’s office sent Edling a letter, informing him that a public hearing had been scheduled regarding the revocation of his CUP and urging him to consult an attorney.  A subsequent letter to Edling from the Isanti county attorney’s office indicated that the hearing was to be held on July 28, 2005, and stated that if Edling needed additional time to prepare for the hearing he should contact the chief deputy county attorney.  After Edling contacted the Isanti county attorney’s office, the hearing was rescheduled for August 3, 2005.  Edling appeared at the hearing with counsel.  The Isanti County Board of Commissioners voted to revoke his CUP.  This appeal follows.

D E C I S I O N

1.         County’s Findings

            Relators argue that the county’s reasons for revoking the CUP are insufficient and lack a factual basis.  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) (citation omitted).  This court gives great deference to a county’s land-use decisions 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).  This court must therefore assess the legal sufficiency and factual basis of the reasons given by the county.  Scott County Lumber Co. v. City of Shakopee, 417 N.W.2d 721, 727 (Minn. App. 1988), review denied (Minn. Mar. 23, 1988).  A legally sufficient reason is one “reasonably related to the promotion of the public health, safety, morals and general welfare of the community.”  St. Croix Dev. Inc. v. City of Apple Valley, 446 N.W. 2d 392, 398 (Minn. App. 1989), review denied (Minn. Dec. 1, 1989). 

            The county board revoked Edling’s CUP based on the following findings: (1) “Edling’s use of the property is far outside the scope of the CUP”; (2) based on the “change[s] in the nature and scope of the operation, an EAW is now required . . . to assess the [operation’s] potential environmental impact”; and (3) “because of the expansion of the project and the lack of any precautions, the site is a public nuisance.” 

            The county granted the CUP based on Edling’s representations that he would be mining black dirt from ponds that would not exceed a depth of 10 feet.  Absent these representations, the county and the DNR would have required an EAW and different conditions likely would have been placed on the CUP, as evidenced by Mueller’s initial response to the CUP application.  Mueller’s assessment of the situation changed because Edling represented that the ponds would not be deeper than 10 feet and because Edling scaled the proposed operation down from 114 acres to 40 acres.  Relying on Edling’s representations, Mueller informed the county that the revised proposal did not require an EAW.

            An EAW is required when the proposed project “will excavate 40 or more acres of land to a mean depth of ten feet or more during its existence.”  Minn. R. 4410.4300, subps. 1, 12(B) (2005).  The EAW requirement also includes projects on wetlands that

change or diminish the course, current, or cross-section of 40 percent or more of five or more acres of types 3 through 8 wetland of 2.5 acres or more, excluding protected wetlands, if any part of the wetland is within a shoreland area, [or] delineated flood plain.

 

Minn. R. 4410.4300, subp. 27 (2005).  It is clear from the record that, had Edling informed the county of the extent of his proposed operation, an EAW would have been required.  Therefore, the county’s decision to revoke the CUP because it exceeded the scope of the CUP application was not arbitrary. 

            Relators also contend that the county’s finding that the operation was a public nuisance lacks any evidentiary support.  “Whoever by an act or failure to perform a legal duty intentionally . . . maintains or permits a condition which unreasonably annoys, injures or endangers the safety, health, morals, comfort, or repose of any considerable number of members of the public” is guilty of maintaining a public nuisance.  Minn. Stat. § 609.74(1) (2004).  For an interference with the enjoyment of life or property to constitute a nuisance, it must be material and substantial.  Jedneak v. Minneapolis Gen. Elec. Co., 212 Minn. 226, 229, 4 N.W.2d 326, 328 (1942).  A court measures the degree of discomfort by the standards of ordinary people in relation to the area where they reside.  Id. 

            Relators argue that the record is “devoid of evidentiary support for the application of objective standards used in determining whether the mining operations have become a nuisance.”  The wrongful conduct resulting in creation of a nuisance may be intentional conduct, but can also be “negligence, ultrahazardous activity, violation of a statute or some other tortious activity.”  Highview N. Apartments v. County of Ramsey, 323 N.W.2d 65, 71 (Minn. 1982).

            There is evidence in the record that approximately 65 neighbors claimed that they have been negatively affected by the operation’s noise, dust, and traffic.  It is appropriate to consider neighborhood opposition to zoning requests.  Swanson v. City of Bloomington, 421 N.W.2d 307, 313 (Minn. 1988).  But generalized or unsupported neighborhood opposition does not, by itself, provide a legally sufficient reason for revocation.  See Chanhassen Estates Residents Ass’n v. City of Chanhassen, 342 N.W.2d 335, 340 (Minn. 1984); Minnetonka Congregation of Jehovah’s Witnesses, Inc. v. Svee, 303 Minn. 79, 85, 226 N.W.2d 306, 309 (1975).

            Here, many of the neighbors’ concerns were neither generalized nor unsupported.  Opposition was based on the apparent danger the mining operation created because of a lack of fencing around the large pits, excessive dust, and traffic concerns.  The validity of the complaints was verified by the county officials who conducted site inspections.  We conclude that the record contains sufficient support for the county’s determination that Edling’s current operation is a public nuisance.

2.         Due Process

            Relators argue that they were denied their substantive due-process rights.  To show such a violation, relators must establish that they suffered a “deprivation of a protectible property interest” attributable to “an abuse of governmental power sufficient to state a constitutional violation.”  Northpointe Plaza v. City of Rochester, 465 N.W.2d 686, 689 (Minn. 1991).  Relators claim a property interest in the CUP that they were deprived of when the county revoked the CUP. 

            Minnesota courts recognize “a constitutionally protected property interest in an application for a land-use permit [that] . . . is conditioned only upon compliance with the zoning ordinance.”  Id.  In Northpoint Plaza, the supreme court held that the city’s arbitrary conduct in denying a conditional-use permit for property was not sufficiently egregious, irrational, or extraordinary to support a federal substantive due-process claim under § 1983.  Id. at 691.  Although “[t]he city erroneously relied on an expert who had an obvious conflict of interest and who failed to study the project directly, rejected the only credible expert studies and recommendations, and . . . based its decision on neighborhood opposition,” the action “represented conduct ordinarily found in ‘run-of-the-mill’ zoning disputes.”  Id.  Here, the county’s revocation does not rise to the level of a violation of substantive due process.

            Edling also claims that he was deprived of reasonable notice of the revocation hearing and that the county’s notice did not comply with the Minnesota Rules of Civil Procedure.  “[Q]uasi-judicial proceedings do not invoke the full panoply of procedures required in regular judicial proceedings.”  Barton Contracting Co. v. City of Afton, 268 N.W.2d 712, 716 (Minn. 1978).  The due-process rights required are simply “reasonable notice and a reasonable opportunity to be heard.”  Id.

            Quasi-judicial proceedings of a governing body do not require the typical procedures of judicial proceedings.  Id.  The record reflects that Edling received notice and was granted additional time for preparation. 

            Affirmed.

MINGE, Judge (dissenting)

            I respectfully dissent.  The conditional use permit (CUP) issued by Isanti County to Elding authorizes the “mining of minerals, sand, gravel, peat and black dirt.”  It is not limited to digging ponds and mining black dirt.  The removal of sand and gravel is within the uses permitted by the CUP.

            The majority takes the position that the application process for the CUP defines the scope of the CUP as issued and that in this case Edling’s application and statements provide a sufficient basis to support the County’s decision to revoke.  At the outset, I agree that the County has a responsibility to avoid environmental degradation, that sharp practices that compromise wetlands and create nuisances should not be condoned, and that this court should defer to the counties when such abuses occur.  However, the record does not support a finding of such abuses.  In fact, the county does not claim fraudulent misrepresentation.  At most, we have a sparse record.

            The proposition that the representations by the land owner confine or become an implied condition of a CUP is not found in the statutes or a reported decision in this state.  In Wisconsin, a court reached the conclusion that development plans filed with a local unit of government did not so limit the actual CUP as issued.  See Bettendorf v. St. Croix County Bd. of Adjustment, 591 N.W.2d 916, 918-19 (Wis. Ct. App. 1999).  At a minimum, I would hold that finding implied conditions on this basis of representations should be limited to clear situations.  As the following discussion indicates, the situation in this proceeding is far from clear.

            In this proceeding there were four alleged violations that were the basis for revoking the CUP.  The first was that Edling was doing far more than “mining” black dirt and creating ponds.  In fact, Edling never limited his proposed activity to dirt removal.  Isanti County gave him a CUP that specifically authorized mining sand and gravel.  It even authorizes mining minerals.  To revoke his permit because he has a gravel removal operation is directly inconsistent with the permit.  The claim that he represented he would only mine dirt and dig ponds is based on murky evidence; it does not meet the standard of substantial evidence on the record as a whole.

            Next, there was a dispute over the depth of the areas being mined.  This is important for two reasons.  If the mean depth is greater than 10 feet, an Environmental Assessment Worksheet (EAW) would be required and issuance of the CUP would have been delayed.  See Minn. R. 4410.4300, subp.12(B) (2005).  Also, there is a claim that Edling represented that he would not excavate below a maximum depth of 10 feet regardless of an EAW.  The County’s compliance technician visited the site after the controversy arose and estimated that some areas of excavation exceeded 30 feet deep.  However, there is no evidence that the mean depth is 10 feet or greater.  The assertion by Isanti County that Edling committed to a maximum depth of 10 feet and that this became part of the CUP is not supported by substantial evidence.  The record contains no written or verbal representation by Edling regarding maximum depth of any mining.  All that appears is a phrase in the minutes of an Isanti County Planning Commission meeting that “[t]he ponds will be under 10’ deep” and a letter from the county attorney claiming that Edling said this at that commission meeting.  In fact, it is undisputed that Edling did not even attend that meeting.  In the end, there is nothing to indicate the source of the “10’ deep” phrase in the planning commission’s minutes.  In any event, no 10-foot depth restriction is carried forward into the CUP.  That an area of a gravel pit is more than 10 feet deep does not justify revoking the CUP or an EAW.

            Third, there is an allegation that the gravel operation is compromising wetlands and requires an EAW.  There is nothing in this record indicating that Edling is compromising any wetland in violation of any statute, regulation or ordinance. 

            Fourth, there is evidence of neighbors objecting to dust, noise, and traffic from the gravel operation.  I do not disagree that the county can regulate gravel operations to deal with such problems and ultimately revoke a CUP if regulations are violated.  However, a revocation of a CUP without any standards, evidence of prior notice of standards, or evidence of failure to comply with standards violates due process.  See Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S. Ct. 893, 902-03 (1976).  This is a basis for further proceedings by Isanti County; not revocation of Edling’s CUP.