This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-98-1520

Nanette Blom, et al.,

Relators,

vs.

St. Louis County Planning Commission,

Respondent.

Filed January 12, 1999

Affirmed; motion denied

Short, Judge

St. Louis County Planning Commission

Greg C. Gilbert, Laura J. Schacht, Johnson, Killen, Thibodeau & Seiler, P.A., 811 Norwest Center, 230 West Superior Street, Duluth, MN 55802 (for relators)

Alan L. Mitchell, St. Louis County Attorney, Amy J. Hunt, Assistant County Attorney, 100 North Fifth Avenue West, #501, Duluth, MN 55802 (for respondent)

Robert C. Maki, Shawn B. Reed, Maki & Overom, Chartered, 31 West Superior Street, Suite 402, Duluth, MN 55802 (for amicus curiae Anthony Katzmarek)

Considered and decided by Short, Presiding Judge, Lansing, Judge, and Randall, Judge.

U N P U B L I S H E D O P I N I O N

SHORT, Judge

This zoning dispute involves approval of a conditional use permit to operate a borrow pit in Grand Lake Township, St. Louis County. Nanette and James Blom, homeowners who reside near the pit, argue the St. Louis County Planning Commission acted arbitrarily and capriciously in: (1) finding the borrow pit site had been in continuous use since January 1, 1969; and (2) granting an "existing pre-ordinance pit" conditional use permit. In addition, the Bloms move to strike part of the amicus curiae brief. We deny that motion and affirm.

D E C I S I O N

Land use decisions are entitled to great deference and will be disturbed on appeal only in instances where the municipality's decision has no rational basis. Honn v. City of Coon Rapids, 313 N.W.2d 409, 417 (Minn. 1981); see also Carl Bolander & Sons Co. v. City of Minneapolis, 502 N.W.2d 203, 207 (Minn. 1993) (reviewing governmental body's determination on basis of whether unreasonable, arbitrary, or capricious). On appeal from a grant of a conditional use permit, we review the zoning action to determine whether the municipality's decision was reasonable and its proceedings were fair and complete. Honn, 313 N.W.2d at 416-17 (Minn. 1981); see also Trisko v. City of Waite Park, 566 N.W.2d 349, 352 (Minn. App. 1997) (stating as long as valid reason is given for grant or denial of permit, decision not arbitrary if it fits rational basis test), review denied (Minn. Sept. 25, 1997).

I.

The Bloms argue the commission acted arbitrarily and capriciously in finding the borrow pit site had been in continuous use since January 1, 1969. It is undisputed the pit existed, but the Bloms claim the commission ignored the definition of "continuous use" set forth in the ordinance.

St. Louis County, Minn., Zoning Ordinances, No. 46, art. VI, § 25.02(A)(Z) (1993), states:

No borrow pits may be closed under this provision if the pit was established prior to January 1, 1969 and has been in continuous use since that date, application is made within the 18 month period, and the minimum standards are met. Continuous use is defined as the removal of a minimum of 100 cubic yards of material every two years.

(Emphasis added.) Interpretation of a zoning ordinance is a question of law that should be construed (1) according to the plain and ordinary meaning of its terms, (2) in favor of the property owner, and (3) in light of the ordinance's underlying policy goals. Frank's Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608-09 (Minn. 1980); Medical Servs., Inc. v. City of Savage, 487 N.W.2d 263, 266 (Minn. App. 1992). General rules of statutory construction may also aid interpretation. See Batalden v. County of Goodhue, 308 N.W.2d 500, 501 (Minn. 1981) (interpreting a zoning ordinance using canons of statutory construction).

The record demonstrates: (1) the previous owner of the property obtained a conditional use permit to operate a borrow pit from the Town of Grand Lake; (2) when St. Louis County took over zoning responsibility for Grand Lake in 1993, the pit was a permitted land use for that property; (3) the extent of excavation on the property in aerial photographs taken in 1961, 1972, 1981, 1989, and 1997; and (4) a 1967 memorandum from the assistant county attorney to the county highway department indicates extensive excavation. Although there was conflicting evidence provided by neighbors, the commission's decision that the pit qualified as a pre-existing pit has record support and is reasonable.

II.

The Bloms argue that even if the pit was pre-existing, the commission acted arbitrarily in granting a permit for the full 40 acres. But, the entire area of a gravel bed can be used without constituting an unlawful extension of a nonconforming use. See Hawkins v. Talbot, 248 Minn. 549, 553, 80 N.W.2d 863, 866 (1957) (holding owner did not violate municipal ordinance by enlarging size of gravel pit). In addition, there is evidence that, as early as 1967, excavation extended from the .73 acre pit to the adjoining property. Given that evidence and the law regarding diminishing assets, we cannot say the commission erred in granting the permit under the grandfather provision of the zoning ordinance. See id. (interpreting ordinances involving diminishing assets to mean all of land containing particular asset, not only area in which operations were being conducted when ordinance was adopted).

The parties presented testimony and evidence to the commission. After consideration of the evidence, the commission concluded the pit qualified as a pre-existing borrow pit, granted a conditional use permit, and imposed conditions governing times of day/year that certain operations may occur, establishing a buffer zone, requiring fencing, and mandating use of only one entrance to the pit. Under these circumstances, the commission's decision was reasonable and its proceedings were fair and complete.

Affirmed; motion denied.