This opinion will be unpublished and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

A05-1912

 

Dennis Winkelman,

Relator,

 

vs.

 

Stearns County Planning Commission,

Respondent.

 

 

Filed August 29, 2006

Affirmed

Hudson, Judge

 

Stearns County Planning Commission

 

Paul A. Jeddeloh, Jeddeloh & Snyder, PA, 803 West St. Germain Street, St. Cloud, Minnesota 56301 (for relator)

 

Thomas P. Carlson, Nigel H. Mendez, Carlson & Soldo, P.L.L.P., 1052 Centerville Circle, Vadnais Heights, Minnesota 55127 (for respondent)

 

            Considered and decided by Worke, Presiding Judge; Kalitowski, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

On appeal from a conditional-use permit (CUP) decision, relator argues (a) the “denial” is defective because no reasons were given why the site for relator’s proposed construction was unacceptable; and (b) the record submitted to the county is factually incorrect and would not support denying the CUP even if adopted as the reasons for the denial.  Respondent challenges this court’s subject-matter jurisdiction.  Because this court has jurisdiction to hear the case, and because appellant has not shown that the county acted in an arbitrary or capricious manner by approving the CUP with the additional condition regarding the placement of the house on the property, we affirm. 

FACTS

 

Relator Dennis Winkelman co-owns approximately 35 acres of farmland (“the property”) with Brigid Murphy.  Winkelman and Murphy wish to build a single-family dwelling on the northwest corner of the property.  A neighbor to the east has a home adjacent to the property.  To the west of the property is contiguous farmland, which is currently being rented to the same farmer as relator’s property and is used for agricultural purposes along with relator’s property.  The property is zoned as tillable farmland.

In May 2005, Stearns County Environmental Services Department denied an application for a construction site permit, informing relator and Murphy that they would need a conditional-use permit.  In June 2005, Murphy signed an application seeking a CUP from Stearns County to allow a portion of the land to be used for the house.  The county considered the CUP on July 21 at a hearing attended by both Murphy and relator.  After hearing testimony during which the commissioners expressed concerns about the proposed placement of the house, a motion to grant the permit as requested failed.  A second motion to grant the permit on the additional condition that the house be located in the northeast corner of the parcel passed.  The CUP was approved, and notice was sent to Murphy at the address on the application form.  Murphy and relator petitioned for writ of certiorari to this court, and it was issued.  Service was made on: (1) Larry Haws, chair, Stearns County board of commissioners; (2) Chuck Barth, chair, Stearns County planning commission and Stearns County environmental services; and (3) Janelle Kendall, Stearns County attorney.

In an earlier motion to dismiss, the county challenged this court’s jurisdiction due to the untimely service of the petition.  This court dismissed Murphy’s action, but because the county failed to provide Winkelman with notice of the decision, Winkelman’s action continues.  In its brief, the county challenges this court’s jurisdiction again.  This time the county argues that relator failed to serve the correct county officials.  On February 6, 2006, and in response to the county’s claim that service had not been perfected, relator served each of the Stearns County commissioners and the county auditor.

D E C I S I O N

I

 

As an initial matter, the county challenges this court’s subject-matter jurisdiction.

First, the county challenges jurisdiction due to untimely service of the issued writ of certiorari.  Timely service of the issued writ is required to vest jurisdiction in the court of appeals.  Minn. Stat. § 606.02 (2004); Savre v. Indep. Sch. Dist. No. 283, 642 N.W.2d 467, 470 (Minn. App. 2002).  This court has already determined that Winkelman did not receive due written notice, thus the September 29 service of the issued writ was not untimely.  Because this issue has already been decided, we will not re-address it.  See Minn. R. Civ. App. P. 140.01 (stating that “[n]o petition for rehearing shall be allowed in the Court of Appeals”). 

Next, the county claims that Winkelman does not have standing because he did not sign the CUP application.  Because the county has clearly treated Winkelman as a co-applicant throughout the entire permitting process, at the public hearing, and in the notification letter,[1] the county’s attempt to challenge this technical defect lacks merit.

Finally, respondent challenges jurisdiction due to relator’s failure to serve the correct county official.  The county argues that service upon a defendant county is perfected only upon delivering a copy “to the chair of the county board or to the county auditor.”  See Minn. R. Civ. P. 4.03(e)(1).  The county claims that as of the time it submitted its appellate brief, neither the chair of the county board nor the county auditor had been served in this action.  For this appeal by writ of certiorari, Minn. Stat. §§ 606.01–.06 (2004) governs the issuance and service of the writ.  In Savre, 642 N.W.2d at 470, this court concluded that “because Minn. Stat. ch. 606 does not prescribe how an adverse party is to be served, the appellate rule applies.”  Unlike the civil procedure rule cited by the county, the appellate rule provides that “[s]ervice on a party represented by counsel shall be made on the attorney.”  Minn. R. Civ. App. P. 125.02.  Because relator originally served the Stearns County attorney, and because the Stearns County attorney represented the county board at the time of service, relator properly served the county and thus vested this court with jurisdiction to review this CUP decision.

II

 

Relator argues that building a single-family dwelling on the 35-acre property is a permitted use in the zoning district.  Where a zoning ordinance expressly authorizes the use proposed, a county may only deny a conditional-use permit “for reasons relating to public health, safety, and general welfare.”  C.R. Invs., Inc. v. Village of Shoreview, 304 N.W.2d 320, 324 (Minn. 1981).  We construe a zoning ordinance according to its plain and ordinary meaning and in favor of the property owner.  Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608–09 (Minn. 1980).

Relator’s land is located in Stearns County agricultural district A-40.  The predominant land use in district A-40 is for agriculture.  Stearns County, Minn., Zoning Ordinance § 9.3.1 (2005).  The express primary purpose of the zoning ordinance is “to preserve the agricultural and rural character of land within the A-40 District.”  Id. As a part of this goal, “additional residential development may be allowed at a low density of not more than one residence per 40 acres.”  Id.  Under the relevant part of the ordinance, a “single family residential dwelling unit” is listed as a permitted use “subject to any applicable performance and general development standards contained in Section 6 and 7 of this Ordinance.”  Stearns County, Minn., Zoning Ordinance § 9.3.2 (2005).  Section 7 of the zoning ordinances includes a provision for zoning standards for tillable farmland, stating in relevant part:

These standards are adopted for the purposes of reducing the impact of development on tillable farmland, for limiting rural/urban conflict, for preserving the rural character of the County, . . . and for protecting the investment made in farm related infrastructure.  These standards apply in the . . . A-40 primary zoning districts. . . .

A.        In those instances where all of the land being proposed to be built upon has a LESA score of 65 or above, a residential dwelling may be allowed, pursuant to [the conditional use provisions of] Section 4.8 of this Ordinance.

B.        Residential dwelling units, accessory structures and driveways shall be located to avoid impacts on agricultural infrastructure, tillable farmland, highly productive soils . . . and shall be sited on a parcel in a manner which minimizes the amount of productive agricultural . . . land which is converted to the proposed use.

C.        The proposed use shall be located in close proximity to existing structures whenever possible and appropriate.

 

            . . . .

 

E.         The location of the residential dwelling unit, accessory structure and driveway shall be buffered from adjacent agricultural lands and infrastructure by means of distance, topography, vegetative screening or other measures as approved by the Director and/or the Planning Commission.

 

Stearns County, Minn., Zoning Ordinance § 7.29 (2005).

While a single-family-residential dwelling is a permitted use listed in section 9.3.2, those permitted uses are expressly subject to exceptions in section 7 of the ordinance and thus are not in conflict with the additional requirements of that section.  Section 7 includes an express provision for tillable farmland that makes it a conditional use to build a residential dwelling on land that has a land-evaluation site assessment (LESA) score of 65 or more.  Here, relator does not challenge the fact that the property is tillable farmland or that the county assigned a LESA score of 77.91 to the property.  Because all of the property that is the subject of this CUP is tillable farmland with a LESA score above 65, the plain and ordinary meaning of the ordinance is that the building of a residential dwelling on that land is not a permitted use under section 9.3.2, but is one that requires a conditional-use permit under section 4.8.

III

 

Relator characterizes the CUP as having been denied based on the initial failed motion of the planning commission to approve the CUP with only two standard conditions.  The county argues that the CUP, with one additional condition, was ultimately approved and that relator’s continued reference to the CUP as having been denied is a mischaracterization.  This is an important distinction because it affects this court’s standard of review.

On an appeal from a denial, an applicant for a CUP has the burden of persuading this court that the reasons for a denial “either are legally insufficient or had no factual basis in the record.”  Yang v. County of Carver, 660 N.W.2d 828, 832 (Minn. App. 2003).  On appeal from an approval, this court independently reviews the county’s decision “to see whether there was a reasonable basis for the decision, or whether the county acted unreasonably, arbitrarily, or capriciously.”  Schwardt v. County of Watonwan, 656 N.W.2d 383, 386 (Minn. 2003).  Thus, a party faces a heavier burden when challenging a CUP approval.  See Schwardt, 656 N.W.2d at 389 n.4 (stating that CUP denials are held to less deferential standard of review than CUP approvals); Yang, 660 N.W.2d at 832. 

Here, after the planning commission discussed and debated the issue of relator’s CUP, a motion to approve the CUP with only two standard conditions was denied.     Another motion was then brought, adding a condition regarding the re-location of the house.  The CUP was then approved.

            For the purposes of an appeal, when denial of a motion to approve a CUP is followed by approval of a subsequent motion to approve the CUP subject to an additional condition, the CUP application has been approved.  Accordingly, we conclude that this is an appeal of an approved CUP; thus we independently review the record to determine whether the county acted in an arbitrary, capricious, or unreasonable manner by adding the condition regarding the placement of the house.

IV

Alternatively, relator argues that the commission’s decision requiring the house to be located in the northeast corner of the acreage was arbitrary, capricious, and unreasonable because it was based upon several errant assumptions.  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).  “This court will uphold a county’s decision to approve or deny a [CUP] unless our independent review of the record determines the decision was arbitrary, capricious, or unreasonable.”  Yang v. County of Carver, 660 N.W.2d 828, 832 (Minn. App. 2003).  A decision is arbitrary and capricious if it (a) relies on factors it is not permitted or intended to consider; (b) entirely fails to consider an important aspect of the problem; (c) offers an explanation that runs counter to the evidence; or (d) is so implausible that it cannot be explained as a difference in view or the product of the decisionmaker’s expertise.  In re Charges of Unprofessional Conduct Contained in Panel File 98-26, 597 N.W.2d 563, 567 (Minn. 1999); White v. Minn. Dep’t of Natural Res., 567 N.W.2d 724, 730 (Minn. App. 1997), review denied (Minn. Oct. 31, 1997).

Here, the environmental-services staff conducted a site visit and prepared a report for the planning commission that included a recommendation to locate the house in the northeast corner of the property.  The report states:

 

            After conducting a site visit, staff feels that it would be best to build off the eastern field approach.  The field on the applicant’s property is part of a larger field to the west of [the] property.  This location would disrupt less tillable farmland and it is along a line of trees that border the neighboring residence.  The proposed driveway and residence location would be surrounded by tillable farmland whereas the location that staff suggests would not be.  A Conditional Use Permit was issued in June to [relator’s neighbors] to place their residence on the western edge of the 40 acre parcel to the west of the applicant’s property.  The applicant’s request would cause further fragmentation to the tillable farmland.

 

 

 

At the planning commission’s public hearing, Murphy argued that their property should be considered to be separate from the field to the west because she and relator do not own that field.  Here, there was no barrier between relator’s property and the property to the west, and both properties were being rented to the same person as farmland, so as to appear as one larger field.  A commissioner noted that one of the provisions of Stearns County Zoning Ordinance § 7.29 was to locate a new proposed use in close proximity to existing structures whenever possible and appropriate.  The northeast corner of the property abuts another existing residential structure—the neighbor’s house and outbuildings.  In addition, the commission chair stated that “we don’t like houses out in the middle of a productive field.”  Several commissioners expressed concern that relator’s proposed location would create disadvantages to farming and that their role as a commission was to make sure that the house was placed in the most logical place and in accordance with the county’s comprehensive plan.  The planning commission found that the proposal was consistent with the comprehensive plan, but only if the house were located in the northeast corner of the parcel, near an existing building site, thus keeping a larger area of productive agricultural land available for continued use.

The condition requiring the house to be built on the northeast corner of the lot is reasonable.  Because the record supports the planning commission’s decision, we conclude that there was a rational basis for the decision.

            Affirmed.