Gregory J. Griffiths, Dunlap & Seeger, P.A., 505 Marquette Bank Building, 206 South Broadway, Post Office Box 549, Rochester, MN 55903-0549 (for respondent)

Considered and decided by Peterson, Presiding Judge, Davies, Judge, and Foley Judge.^**

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

When Timber Creek's CUP came up for review before the PAC in September 1996, neighbors complained that noise from Timber Creek's sporting clay range adversely affected the quality of their lives. The PAC noted that the CUP had been granted to Timber Creek for a one-year trial period, in order to see if the noise of the shooting operation could be mitigated for the surrounding landowners. It further noted that in order for Timber Creek's CUP to continue, Timber Creek would have to demonstrate that it could mitigate the noise.

At the October PAC meeting, the commission approved a CUP allowing Timber Creek to operate only a shooting preserve, and added a condition. The new condition states:

That sound generated from the shooting preserve, during those times of the year which are not public pheasant hunting seasons, not exceed 40 decibels at any residence located in the area. For the purposes of this condition, the measurement of sound shall be taken at a residential property line or a farmstead boundary nearest the hunting area.

Timber Creek appealed to respondent Olmsted County Board of Commissioners asserting that because it had complied with the conditions of its CUP, the CUP should have remained in effect under the original conditions.

The board adopted a resolution that essentially affirmed the decision of the PAC. The board found that when the PAC reviewed the CUP application in 1995, representatives of Timber Creek

agreed to and understood that a full review of the conditional use was going to be made in one year's time and knew and understood that any improvements done to the property at issue during that year were at the applicant's own risk.

The board also found that Timber Creek had attempted to mitigate the negative impacts of noise from the sporting clay range, and that "noise from the shotguns has been annoying, disturbing, and irritating to residents in the area.

The board further found

that the operation of a sporting clay range is not a use that is permitted as a permitted or conditional use within the A-1 (Agricultural Protection) zoning district.

When a zoning authority states its reasons for denying a conditional use permit, we are required to assess the legal sufficiency of the reasons given and to determine whether, if legally sufficient, they had a factual basis. C.R. Invs., Inc. v. Village of Shoreview, 304 N.W.2d 320, 324 (Minn. 1981). When reasons are given, the petitioner bears the burden of persuading the reviewing court that those reasons are legally insufficient. Corwine v. Crow Wing County, 309 Minn. 345, 352, 244 N.W.2d 482, 486 (1976), overruled on other grounds by Northwestern College v. City of Arden Hills, 281 N.W.2d 865 (Minn. 1979).

Timber Creek's CUP was initially approved for one year, "subject to review and renewal, based upon evidence that existing conditions are being complied with, and evidence that sound reduction measures have been taken."

Timber Creek contends that it took sound reduction measures and, therefore, complied with this condition of its CUP. But merely taking some sound reduction measures is not sufficient to comply with this condition. The condition provides that the CUP was in effect for one year, "subject to review and renewal." Subject to means contingent or dependent upon. The American Heritage Dictionary of the English Language, 1788 (3d ed. 1992). Therefore, the status of the CUP at the end of the year was contingent or dependent upon a review of evidence that sound reduction measures have been taken. This does not mean that a renewal will be granted if there is any evidence that sound reduction measures have been taken. It means that a review will occur, and the decision whether to renew the CUP will depend on the evidence that sound reduction measures have been taken. It would be absurd to construe this condition as permitting a review of sound reduction measures, but not permitting a determination whether the measures are adequate.

The county board reviewed the evidence and concluded that although Timber Creek had taken sound reduction measures, the noise from shotguns remained "annoying, disturbing, and irritating to residents in the area." Based on this conclusion, the county board decided not to renew the CUP for the operation of a sporting clay range. There was a factual basis for the board's conclusion that noise from the sporting clay range annoyed neighboring residents. Because renewal of the CUP was conditioned upon Timber Creek taking sound reduction measures, the board's conclusion that noise from the sporting clay range continued to annoy nearby residents was a legally sufficient reason for denying renewal of the CUP to operate the sporting clay range.

The Olmsted County zoning ordinance provides:

In permitting a new conditional use or the alteration of an existing conditional use, the Planning Advisory Commission may impose, in addition to those standards and requirements expressly specified by this ordinance, additional conditions which the Planning Advisory Commission considers necessary to protect the best interest of the surrounding area or the County as a whole.

Olmsted County, Minn., Zoning Ordinance art. IV § 4.02(B) (1995).

Evidence in the record supports the county board's decision to add a condition to Timber Creek's shooting preserve CUP that limits sound from the preserve to 40 decibels. At the time of review, Timber Creek had not established its shooting preserve. However, data from the Olmsted County Planning Staff established that the noise from the sporting clay range was 58 decibels at residences in the area. Using sound meters, the planning staff determined that the ambient noise level at the residences was 40 decibels. The condition added to the renewed CUP prohibits increased noise at neighboring residences and is, therefore, legally sufficient because it protects the best interests of the surrounding area as permitted by the county ordinance.

Interpretation of an existing zoning ordinance is a question of law. Frank's Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn. 1980). Thus, on appeal we need not defer to the county board's interpretation. Three rules of construction guide our review of zoning ordinances: (1) the terms of an ordinance should be construed according to their plain meaning; (2) zoning ordinances should be construed strictly against the zoning authority and in favor of the property owner; and (3) zoning ordinances must be considered in light of their underlying policy goals. Id. at 608-09.

A-1 districts are described in article V, section 5.00, of the Olmsted County zoning ordinance. A licensed shooting preserve is an expressly permitted conditional use Olmsted County, Minn., Zoning Ordinance art. V, § 5.00 (B)(21) (1995). Conditional uses permitted under article V, section 5.00, also include "[o]ther uses similar to those described as permitted or conditional uses in Section 5.00 (A) or (B)." Olmsted County, Minn., Zoning Ordinance art. V, § 5.00 (B)(16) (1995). Therefore, if a sporting clay range is similar to a licensed shooting preserve, it is a permitted conditional use under the ordinance.

Timber Creek contends that a licensed shooting preserve and a sporting clay range are similar uses because both are intended to simulate natural hunting conditions. This contention, however, addresses only the intended purpose of the two uses; it does not describe the uses. Determining whether the two uses are similar requires evidence that describes the uses. The record does not contain evidence that describes either of the uses in great detail. It appears from the record that a sporting clay range involves shooting at clay targets from several different fixed positions, and a shooting preserve involves hunting live game released shortly before the hunt begins. Although both of these uses include shooting, it is not clear that the amount and the duration of the shooting are similar for both uses. Therefore, we cannot say that the two uses are similar as a matter of law. Timber Creek has not met its burden of persuading this court that the county board's reasons for not renewing the CUP are legally insufficient.

Affirmed.