This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1078

 

Kennecott Exploration Company,

a/k/a Kennecott Exploration, et. al.,

Relators,

 

vs.

 

Aitkin County Planning Commission,

Respondent.

 

Filed July 3, 2007

Reversed and remanded

Randall, Judge

 

Aitkin County Planning Commission

File No. 33871C

 

Paul B. Kilgore, Fryberger, Buchanan, Smith & Frederick, P.A., 700 Lonsdale Building, 302 West Superior Street, Duluth, MN 55802 (for relators)

 

Jay T. Squires, Julia H. Halbach, Ratzik, Roszak & Maloney, P.A., 730 Second Avenue South, Suite 300, Minneapolis, MN 55402 (for respondent) 

 

John A. Knapp, David M. Aafedt, Winthrop & Weinstine, P.A., 225 South Sixth Street, Suite 3500, Minneapolis, MN 55402 (for amicus curiae)

            Considered and decided by Randall, Presiding Judge; Willis, Judge; and Crippen, Judge.* 

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            On certiorari appeal from the denial of relator-applicants’ application for a conditional-use permit (CUP), relators argue that the denial of the CUP was arbitrary and capricious because (a) the denial is inconsistent with the state’s statutorily articulated policy favoring mineral mining; (b) the record does not support the denial; (c) the planning commission misread the CUP as a mining application; and (d) the planning commission put too much weight on public sentiment.  We reverse and remand for proceedings consistent with this opinion.

FACTS

            Relators Kennecott Exploration Company (Kennecott), Oswald Maa, Jon Gillette, and Tatonka Plains Bison Ranch sought to conduct mineral exploration activities in Aitkin County.[1]  The Aitkin County Board of Adjustment determined, following a hearing, that a conditional-use permit (CUP) was required for relators’ proposed
activities.[2]  On or about April 19, 2006, relators applied for CUPs to conduct mineral exploration activities on private property in Aitkin County (county).  Kennecott’s application included extensive written information and supporting documents, including a letter from the Minnesota Department of Natural Resources (DNR).

After providing the required notice, Aitkin County’s planning commission (commission) held a public hearing regarding the CUP application on May 15, 2006.  Three Kennecott representatives appeared and testified at the hearing:  Dean Rossell, senior geologist for Kennecott’s nickel team in North America; Robert Peter, project geologist; and Robert Johnson, Kennecott’s land manager.  Kennecott’s representatives made a detailed presentation to the commission.  Kennecott introduced itself to the commission, described the business of the company, summarized the exploration process, and highlighted the difference between mineral exploration and mining.  Kennecott described the stages of mineral exploration, how bore holes are sealed, and the state inspection process. 

Two additional supporters appeared and testified on behalf of relators, Marty Vadis, assistant director of the Division of Lands and Minerals of the DNR, and Arlo Noel, the Division’s mine-land reclamation manager.  Vadis testified about his past experience with Kennecott, state laws regulating and licensing mineral exploration, the protections involved in temporary abandonment of bore holes, and permanent well sealing.  When asked about the harm caused by mining, Vadis emphasized the distinction between mining and mineral exploration, and compared exploration with drilling a water well. 

The public hearing was well attended by those opposed to relators’ CUP.  Several individuals spoke at the hearing and 31 letters submitted prior to the hearing were either read into the record or otherwise made a part of the record.  Many of the speakers and letters discussed mining and its impacts on the environment, instead of mineral exploration.  The majority of the comments were broad generalizations and pleas to the commission not to allow “any pollution from mining activities . . . negatively impact[ing] the ecology of [the Big Sandy Watershed].”  (Emphasis added.) 

One commissioner moved to vote on relators’ application and another seconded the motion, at which point the commission learned that it needed to make findings before voting.  The commission then proceeded to discuss, on the record, the seven criteria required by county ordinance upon which findings must be made.[3]  On the record, the
commission determined that four of the seven criteria disfavored relators.[4]  The commission then denied relators’ CUP application.  This certiorari appeal followed.

D E C I S I O N

On appeal, relators argue that the commission’s denial of their CUP was arbitrary and capricious.  Relators make four specific arguments in support of this assertion.  First, relators argue that the commission rejected legislatively enacted law.  Second, relators argue that the commission rejected their evidence in favor of unsubstantiated generalizations.  Third, relators argue that the commission mischaracterized their mineral exploration application as a mining application.  And finally, relators argue that the commission surrendered to public opinion.

A county’s decision to grant or deny a CUP is quasi-judicial in nature and reviewable by writ of certiorari.  Bartheld v. County of Koochiching, 716 N.W.2d 406, 411 (Minn. App. 2006).  A county’s quasi-judicial decision to grant or deny a CUP is independently reviewed by an appellate court to determine whether the county acted unreasonably, arbitrarily, or capriciously.  Schwardt v. County of Watonwan, 656 N.W.2d 383, 386 (Minn. 2003).  “A county’s denial of a conditional use permit is arbitrary where the applicant establishes that all of the standards specified by the zoning ordinance as
conditions of granting the permit have been met.”  Yang v. County of Carver, 660 N.W.2d 828, 832 (Minn. App. 2003). 

“Reasonableness is measured by examining whether the standards in the ordinance have been satisfied.”  City of Barnum v. County of Carlton, 386 N.W.2d 770, 775 (Minn. App. 1986) (citing White Bear Docking & Storage, Inc. v. City of White Bear Lake, 324 N.W.2d 174, 176 (Minn. 1982)).  A county’s stated reasons for denying a CUP are reviewed and a reversal is warranted “if the reasons are legally insufficient or if the decision is without factual basis.”  Bartheld, 716 N.W.2d at 411.

A zoning ordinance governing the issuance or denial of a permit should be construed according to its plain and ordinary meaning and in favor of the property owner.  Chanhassen Estates Residents Ass’n. v. City of Chanhassen, 342 N.W.2d 335, 339-40 (Minn. 1984).  The party seeking review bears the burden of persuading the reviewing court that the permit denial was inappropriate because of either legally insufficient reasons or a lack of factual basis in the record.  Hubbard Broadcasting, Inc. v. City of Afton, 323 N.W.2d 757, 763 (Minn. 1982). 

1.         Failure to comply with legislatively enacted law

Relators argue that the commission improperly substituted its view of relators’ CUP application instead of following state statute and the county’s comprehensive-land-use plan which favor mineral exploration.  We agree.  The Minnesota Legislature supports mineral exploration:  “It is the policy of the state to provide for the diversification of the state’s mineral economy through long-term support of mineral exploration, evaluation, environmental research, development, production, and commercialization.”  Minn. Stat. § 93.001 (2006).[5]  However, the legislature has provided county boards with the authority to grant or deny applications for CUPs, and the authority to promulgate their own standards for granting CUPs.  Minn. Stat. § 394.301, subd. 1 (2006).  Aitkin County’s own comprehensive-land-use plan states that the county should “[p]romote continued, but careful, exploration of mineral resources so their location and extent is known.” 

Relators argue that the commission, in considering their CUP, substituted their own judgments and preferences in place of those established by the state legislature and in the county’s land-use plan.  As evidence of this assertion, relators point to statements made by various commissioners both on the record and in their findings of fact:  (1) “all mining operations including mineral exploration and drilling with or without contamination are injurious to the enjoyment of the area”; (2) “[i]t just seemed like a no brainer there.  I don’t know if anybody wants to live by a mine”; and (3) “[i]f mineral exploration is acceptable anywhere, I suppose it can be acceptable there.”

No discussion was held on the record regarding whether relators’ CUP request complied with the county’s land-use plan.  Instead, the issue of compliance was raised and quickly found to be true:

No. 4, the requested use conforms to the comprehensive land use for the County?  And this is allowed as a CUP, so that would be yes.  And also the comp plan does talk about nonmineral mining, I believe, which says it just needs to comply with state rules and regulations, so it does address it.

 

We conclude that the individual opinions of the commissioners were predetermined and heavily influenced by public opposition.  The state and the county’s land-use plan favor mineral exploration.  The planning commission was vested with the authority to grant or deny relators’ CUP.  The issue is whether the commission’s denial was based on legally sufficient reasons or was supported by a factual basis.  See Bartheld, 716 N.W.2d at 411 (stating that a county’s CUP denial warrants reversal “if the reasons are legally insufficient or if the decision is without factual basis”).

2.         The record does not support the denial

Relators argue that the commission’s findings are unsupported and contrary to the evidence they submitted.  We agree.  In making its decision, the commission considered the criteria required by the county ordinance in determining whether a CUP should be granted or denied.  Of the seven factors, the planning commission found that four favored granting the CUP while three favored denying the CUP.  The county argues that because relators failed to satisfy three of the seven standards, denial of the CUP was reasonable.  See Trisko v. City of Waite Park, 566 N.W.2d 349, 352 (Minn. App. 1997) (“[A] city’s denial of a land use request is not arbitrary when at least one of the reasons given for the denial satisfies the rational basis test.”), review denied (Minn. Sept. 25, 1997).  Relators disagree and argue that the record does not support the denial of the CUP. 

“While it is not necessary to prepare formal findings of fact, a county board ‘must, at a minimum, have the reasons for its decision recorded or reduced to writing and in more than just a conclusory fashion.’”  Picha v. County of McLeod, 634 N.W.2d 739, 742 (Minn. App. 2001) (quoting Honn v. Coon Rapids, 313 N.W.2d 409, 416 (Minn. 1981)). 

At the public hearing, the county’s main concerns included that (1) exploration might be conducted in a manner contrary to public interest, (2) the nature of the exploration proposed might be destructive, and (3) the bore holes might be abandoned.  Relators took special care to address each of these issues and answered questions with respect to these concerns.

First, relators provided testimony that Kennecott and its employees were in compliance with all required state licenses and regulatory requirements.  Vadis, from the DNR, testified favorably to past experiences with Kennecott and described the applicable state regulations governing relators’ proposed activities.  Second, relators explained, in detail, the five stages of mineral exploration, and that only the first three would be pursued in Aitkin County.  Relators also presented testimony that mineral exploration
drilling is analogous to drilling a water well.  Finally, Vadis explained state boring laws, which establish procedures for creating a bore hole and sealing a bore hole.

After hearing testimony and considering both oral and written comments, the commission initially attempted to decide on relators’ application without making any findings or even discussing the criteria provided in the county ordinance.  After being corrected and informed that findings and a discussion were required prior to initiating a vote, one commissioner acknowledged that “for all these people here, I don’t have any pros.  I haven’t heard one thing for [the CUP].”  Upon discussing the first of the seven factors, several commissioners highlighted that the reason for their votes against relators rested on the fact that “all the people that are here are against it.” 

One of the commissioners expressed his wishes to table the issue since, in his opinion, “I haven’t heard solid facts one way or the other, . . . but in order to move [these] proceedings along I’m going along with the rest of the board.”  The discussion format that followed involved someone reading the factor and each commissioner then commenting.  The commissioners’ remarks were general, conclusory, and marked by confusion. The commissioners did not provide support for their conclusions based on the evidence that had been presented.  See White Bear Rod and Gun Club v. City of Hugo, 388 N.W.2d 739, 742 (Minn. 1986) (holding that a city council’s decision to deny a special use permit lacked adequate findings when it listed nothing more than its sources of information and did not state how the council may have evaluated or used this information); see also Chanhassen Estates Residents Ass’n, 342 N.W.2d at 340 (concluding that generalized or unsupported neighborhood opposition does not, by itself, provide a legally sufficient reason for a CUP denial).  

We conclude the commission’s decision was arbitrary and capricious and unsupported by the record.

3.         Mischaracterization of the CUP

Relators argue that the commission failed to distinguish between mineral exploration and mineral extraction (mining), and improperly based its denial on its objection to mineral extraction.  Relators contend that a review of the entire transcript leaves one with a firm conviction that the subject of the discussion was mineral extraction, not mineral exploration. 

Relators purposefully began their presentation to the commission by stating that no mine had yet been discovered in Aitkin County and that relators’ CUP application was for the purpose of mineral exploration, not for mining.  On several occasions, concerned citizens commenting on the record confused mining and mineral exploration, as was also the case in many of the letters submitted before the public hearing.  Citizens were not the only ones making the leap from mineral exploration to mining.  One commissioner stated, “I don’t think there’s any mining operation not injurious to the land of some kind.”  Another commissioner agreed, “[W]e’re talking about mining.”  After the chairman corrected the commissioners, one stated, “I’m sorry, I do make that leap.” 

            The county argues that by the time the commission began discussing the seven factors relevant to granting or denying a CUP application, the commissioners were clear that mineral exploration, not mining, was the issue.  The record is different.  The findings are general and only twice mention “mineral exploration.”  In fact, the first finding states, “all mining operations including mineral exploration and drilling with or without contamination are injurious to the enjoyment to the area.”  From the record, it is indisputable that some of the commissioners mischaracterized relators’ proposed activities as mining.  The chairman corrected these commissioners, but it appears that the inference of full-blown mining affected the opinions and votes of some of the commissioners.   

4.         Too much weight on public sentiment

Relators argue that the commission’s denial was based on public opinion rather than the factual record.  “A [county] may consider neighborhood opposition [but] only if based on concrete information.”  Yang, 660 N.W.2d at 833.  Generalized or unsupported neighborhood opposition does not, by itself, provide a legally sufficient reason for a CUP denial.  Chanhassen Estates Residents Ass’n, 342 N.W.2d at 340.  Non-experts may supply reasons to reject expert opinions, but those must be based on actual observations and not merely fears or speculation.  BECA of Alexandria, L.L.P. v. County of Douglas ex rel. Bd. of Comm’rs, 607 N.W.2d 459, 463 (Minn. App. 2000).

 

            In its findings on the first factor, regarding the use and enjoyment of the environment and immediate vicinity, two of the four voting commissioners included among their reasons for opposing relators’ CUP that “all people present are against it.”  The county argues that the planning commission relied on concrete information from the letters and spoken testimony from the hearing.  Specifically, the commission relied on letters from the Minnesota Center for Environmental Advocacy (MCEA), the boards of two local townships, and concerned citizens. 

            The Clark Township Board and the Town of Shamrock both submitted resolutions supporting a denial of relators’ CUP.  The MCEA’s letter did not outright oppose granting relators’ CUP request, but instead, encouraged the commission to obtain more specific information from relators.

            The commission received several e-mails and letters from concerned citizens.  Several local residents spoke at the public hearing in opposition to Kennecott’s mineral exploration.  These letters and e-mails contained the opinions of non-experts.  Some of the submissions referred to materials reviewed by the authors, but none included any concrete information or cited any authority.  Several letters dramatically described the expected destruction that will occur upon relators obtaining a CUP.  One resident stated, “I beg you to listen to the voices of all of us [and] stop this company from destroying everything that we have.”  See Scott County Lumber Co., Inc. v. City of Shakopee, 417 N.W.2d 721, 728 (Minn. App. 1988) (holding that community opposition to a landowner’s desired use of his or her property is not a legally sufficient reason for denying a CUP), review denied (Minn. Mar. 23, 1988).             

Relators cite Barnum as support, and we find it directly on point with the record currently before us.  386 N.W.2d at 770.  In Barnum,several property owners opposed a CUP for a wastewater-treatment facility, arguing that the facility would contaminate wells, cause odors, diminish property values, and otherwise adversely affect neighboring lakes and streams.  Id. at 773.  This court reversed the CUP denial, concluding that the county’s decision “appears to have been merely a response to public opposition.  This is an insufficient basis upon which to deny a conditional use permit.”  Id. at 776.  In response to the lack of specificity in the neighbors’ complaints, the court stated:

These individuals stated that the wells in the area were shallow, but no one explained where these wells were located or how shallow they were. They voiced concerns about the possibility of odors from the plant, but did not state how close their properties were to the proposed site. Some complained about a possible reduction in property values, but no one offered any evidence regarding property values in the area of the proposed site or in any other area where stabilization ponds had been built.

 

Id. at 773.

 

As in Barnum, overly broad generalizations were offered here by the public and made their way into the commission’s discussion and findings of fact.

            Finally, we note that the Minnesota Exploration Association (MExA) submitted an amicus curiae brief in support of relators.  Beyond supporting relators’ arguments, MExA offered additional arguments that were not raised by the parties.  Consideration of those arguments would be inappropriate because amicus curiae generally may not raise issues not presented by the parties.  Kline v. Berg Drywall, Inc., 685 N.W.2d 12, 23 n.9 (Minn. 2004) (stating that “[b]ecause an amicus must accept the case before the court with the issues made by the parties, an amicus ordinarily cannot inject new issues into a case that have not been presented by the parties”).

            Reversed and remanded.