Michael Klockmann, Relators v. Le Sueur County Board of Commissioners ( 2015 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0792
Michael Klockmann, et al.,
Relators,
vs.
Le Sueur County Board of Commissioners, et al.,
Respondent.
Filed June 22, 2015
Affirmed
Hudson, Judge
Le Sueur County Board of Commissioners
Gary G. Fuchs, Elizabeth E. Rein, Hammargren & Meyer, P.A., Bloomington, Minnesota
(for relators)
Kenneth H. Bayliss, Quinlivan & Hughes, P.A., St. Cloud, Minnesota (for respondent Le
Sueur County Board of Commissioners)
Timothy M. Kelley, Stinson Leonard Street, LLP, Minneapolis, Minnesota (for
respondent Minnesota Municipal Power Agency)
Considered and decided by Hudson, Presiding Judge; Worke, Judge; and Smith,
Judge.
UNPUBLISHED OPINION
HUDSON, Judge
In this certiorari appeal from respondent-county’s grant of a conditional use permit
(CUP) for a silage-storage facility, relators, opposing landowners, argue that (a) the
proposed use does not fall within the categories of conditional uses allowed by ordinance;
(b) the county lacked authority to rescind its prior denial of the CUP and grant it on
reconsideration; and (c) the grant of the CUP is not supported by the record evidence.
We affirm.
FACTS
In June 2013, respondent Minnesota Municipal Power Agency (MMPA) filed an
application for a CUP to construct a corn-silage storage facility in Sharon Township, Le
Sueur County. The facility, which was intended to meet renewable-energy mandates,
would contain storage bunkers holding numerous tons of silage for transport to a
bioenergy facility located four miles away, in the City of Le Sueur. The bioenergy
facility would then use an anaerobic digestion process to convert the agricultural
processing waste into biogas for use in producing renewable electricity and pipeline-
quality gas.
The storage-facility site was located in an agricultural zoning district. Relators
Michael and Kimberly Klockmann own the residence closest to the site, about 1,000 feet
to the north. The facility was designed to include 16 concrete, 175-foot-by-100-foot
bunkers. Temporary covers would cover the bunkers after the silage was compacted;
leakage and stormwater would be diverted to underground storage tanks. During peak
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corn-pack season, two or three trucks per hour would operate on an 18-hour schedule;
during the off-season, one to two trucks per hour would operate on an 8-12 hour
schedule.
The storage-facility site had been moved from its initial proposed location in the
City of Le Sueur because of a zoning issue near the airport. After the CUP application
for the new site was submitted, the Le Sueur County Planning Commission delayed
processing the application while the Minnesota Pollution Control Agency (MPCA)
determined whether a new environmental assessment worksheet would be required; the
MPCA later determined that a new environmental assessment worksheet was not
required.
At a planning-commission meeting, neighboring landowners articulated several
concerns, including possible flooding potential; health and odor problems caused by
vermin; and noise and traffic-safety problems resulting from a high volume of truck
traffic. An engineer representing MMPA testified that the site’s topography was flat and
far from surface waters, with no wetlands present and a clay layer of soil. He testified
that the site design would capture the majority of stormwater runoff and that odor and
vermin problems would be limited because many of the bunkers would be covered at one
time. The planning commission recommended denial of the CUP, and respondent Le
Sueur County Board of Commissioners (the county board) denied the CUP on a 5-0 vote
in September 2013.
A month later, the landowners on whose property the facility would be located and
MMPA as intervenor filed suit in district court. They sought a writ of mandamus
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compelling the county board to grant the CUP and a judgment declaring that (1) the CUP
had not been formally approved or denied within the required 60-day time limit of Minn.
Stat. § 15.99 (2012) and (2) the proposed use required only a zoning permit, not a
conditional-use permit. In November 2013, they also filed a certiorari appeal to this
court, challenging the denial of the CUP as arbitrary and capricious or affected by legal
error.
In April 2014, the county board reconsidered its denial of the CUP. MMPA had
prepared screening, lighting, and drainage plans to address previous concerns. MMPA
also agreed to install a 100-foot paved entrance, a well, and toilet facilities on the
property, as well as to provide the county with copies of annual site reporting to the
MPCA. An MMPA engineer indicated at a county board meeting that the facility’s
storage ponds are substantially higher than the county’s drain tile system, so that
overflow would occur into the county ditch only in an extraordinary event. He stated that
noncontact stormwater would be allowed to percolate into the ground, but water that had
been in contact with silage would be collected and brought to a leachate tank, which
would be pumped out.
A number of landowners signed a petition requesting the county board to address,
among other questions, “what use listed in the agricultural district allows silage and
stockpiling in an agricultural district. . . . [I]f silage stockpiling is not listed as a permitted
or conditional use, it is prohibited.” At a public hearing, the county’s attorney noted the
pending court proceedings, and a landowner questioned whether those proceedings
required reconsideration of the CUP. The attorney replied that the court actions were
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unresolved and that if they were determined adversely to the county, the facility might be
approved without conditions. The attorney also stated that governmental bodies had
processes for reconsideration, that Robert’s Rules of Order allowed a procedural motion
to rescind the CUP, and that MMPA had indicated that it would seek dismissal of the
lawsuits if the CUP were approved.
The neighboring landowners asserted the existence of a number of issues with the
proposed facility. These included: (1) traffic safety with a high volume of trucking;
(2) odor control; (3) adequate drainage for contact water in a former marsh area;
(4) vermin control; (5) stormwater drainage; (6) declining values of nearby property;
(7) lighting and noise issues; and (8) unfairness in locating the storage facility in the
township when the bioenergy facility would instead serve the City of Le Sueur.
Respondents’ representatives indicated that odors would be minimized by covering the
silage with high-density plastic material, the facility would abide by the local nuisance
ordinance, and stormwater would be retained on site and percolate.
The county board voted 3-2 to approve the CUP with specific conditions,
including monitoring the approved state disposal permit, constructing screening,
complying with standards to minimize spillage, respecting highway weight limits and
erecting safety signs on roads, implementing a drainage-and-lighting plan, providing a
well and toilet facilities, and complying with the local nuisance ordinance. The district
court case was dismissed with prejudice in May 2014, and by stipulation, this court
dismissed the pending appeal of the county’s previous decision denying the CUP. This
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certiorari appeal follows. This court granted MMPA’s stipulated motion to intervene in
the appeal.
DECISION
A county board may approve a CUP if the applicant shows that all the standards
and criteria in the county ordinance will be met. Minn. Stat. § 394.301, subd. 1 (2014).
A county board’s decision regarding a CUP is quasi-judicial and reviewable by writ of
certiorari. Interstate Power Co. v. Nobles Cnty. Bd. of Comm’rs, 617 N.W.2d 566, 574
n.5 (Minn. 2000); Picha v. Cnty. of McLeod, 634 N.W.2d 739, 741 (Minn. App. 2001).
We independently review a county board’s decision to grant a CUP to determine if it is
unreasonable, arbitrary, or capricious. Schwardt v. Cnty. of Watonwan, 656 N.W.2d 383,
386 (Minn. 2003). First, we consider whether the reasons given by the governmental
body are legally sufficient to allow the grant of the CUP. RDNT, LLC v. City of
Bloomington, 861 N.W.2d 71, 75–76 (Minn. 2015). If the reasons given are legally
sufficient, we examine whether they had a factual basis in the record. Id. at 76. This
court “ha[s] traditionally held CUP approvals to a more deferential standard of review
than CUP denials.” Schwardt, 656 N.W.2d at 389 n.4. The interpretation of an existing
ordinance presents a legal question, which this court reviews de novo. RDNT, 861
N.W.2d at 75.
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I
Relators argue that the county board lacked authority to grant a CUP for
construction of the silage-storage facility because that use is prohibited in an agricultural
zoning district. Respondents argue that relators waived this argument by failing to raise
it before the county board. The Minnesota Supreme Court has held that “[t]o allow
parties to litigate an issue [of granting a CUP] on certiorari review that was not raised
before the local zoning authority would encroach on the county’s broad authority in
making quasi-judicial decisions.” Big Lake Ass’n v. St. Louis Cnty. Planning Comm’n,
761 N.W.2d 487, 491 (Minn. 2009). An appellate court
review[s] the record to determine whether the issue was fairly
raised for consideration by the zoning authority. The issue
does not need to be framed in precise legal terms, but there
must be sufficient specificity to provide fair notice of the
nature of the challenge so that the zoning authority has an
opportunity to consider and address the issue.
Id. “[G]eneralized complaints regarding the density of the proposal, which are often
raised by local property owners,” are not sufficient to raise a legal-classification issue.
Id. at 492.
Here, the record shows that the landowners’ petition to the county board raised the
legal issue of whether silage stockpiling was listed as a permitted or conditional use in
the Le Sueur County Zoning Ordinance. This argument is more than a “generalized
complaint[],” and it supplied “fair notice of the nature of the challenge,” so that the
classification argument was not waived. See id.7
Relators argue that the silage-storage facility does not fall within the listed
categories permitted as conditional uses in an agricultural district under the zoning
ordinance. We review de novo the county’s interpretation of its ordinance, applying the
same rules that govern statutory interpretation. Eagle Lake of Becker Cnty. Lake Ass’n v.
Becker Cnty. Bd. of Comm’rs, 738 N.W.2d 788, 792 (Minn. App. 2007). “[W]hen
construing an ordinance, we first determine whether the language is reasonably subject to
more than one interpretation.” Cannon v. Minneapolis Police Dep’t, 783 N.W.2d 182,
193 (Minn. App. 2010). “If the language is unambiguous, we must give effect to the
unambiguous text because the letter of the law shall not be disregarded under the pretext
of pursuing the spirit.” Id. (quotation omitted). Sections of an ordinance must be read
together to determine their plain meaning. Stotts v. Wright Cnty., 478 N.W.2d 802, 805
(Minn. App. 1991), review denied (Minn. Feb. 11, 1992). If the language is ambiguous,
we use canons of statutory interpretation to discern legislative intent. 500, LLC v. City of
Minneapolis, 837 N.W.2d 287, 290 (Minn. 2013).
Relators maintain that the ordinance’s failure to specify a silage-storage structure
as a conditional use in an agricultural zoning district shows an intent to prohibit such a
facility in that district. See Le Sueur County, Minn. Zoning Ordinance, § 5, subd. 5
(2013) (stating that “[w]henever in any Zoning District a use is neither specifically
permitted or [a] conditional use, the use shall be considered prohibited”). They argue that
the proposed facility is more properly characterized as a conditional use for outdoor and
open storage in a General Business District, see id. at § 10, subd. 3(C), or as a facility for
storage of materials in a General Industrial District. See id. at § 11, subd. 3(A). They
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argue that, therefore, the county board should have ordered a study to decide in which
zoning district the facility would have been an acceptable use. See id. at § 5, subd. 5
(stating that if a use is unlisted, the county board may either amend the ordinance to
provide for it, find that it is not compatible in that zoning district, or “conduct a study to
determine if the use is acceptable and, if so, what Zoning District would be most
appropriate”).
We conclude, however, that, read as a whole, the ordinance allows the proposed
facility to be considered as a conditional use in an agricultural district. The ordinance
lists the following as conditional uses in that district:
Water supply tanks or buildings, reservoirs, commercial
wells, gas regulator stations, electric substations or
transmission lines greater [tha]n 35kV, railroad right-of-way,
but not including railroad yards, public sewage treatment
facilities and other similar essential public utility and service
structures.
Id., § 8, subd. 3(J) (emphasis added). “Essential services” are defined to include
“collection, communication, supply or disposal systems and structures, used by public
utilities or governmental departments or commissions. Id., § 4. The silage-storage
facility is a “collection [or] supply . . . structure[].” And MMPA falls within the category
of public utilities, which are defined under the ordinance as “[p]ersons, corporations, or
governments, supplying gas, electric, transportation, water, sewer, or land line telephone
service to the general public.” Id. Because the silage-storage facility is a “collection [or]
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supply . . . structure[] . . . used by a public utility,” the facility qualifies as an “essential
service” structure under the ordinance. See id. § 4; § 8, subd. 3(J).1
By its terms, the ordinance excludes as conditional uses “essential public utility
and service structures” if those structures are “similar” to “railroad yards” and “public
sewage treatment facilities.” Id., § 8, subd. 3(J). “Similar” has been defined as “[r]elated
in appearance or nature; alike though not identical.” American Heritage Dictionary of
the English Language 1682 (3d ed. 1992). We conclude that the proposed silage storage
facility does not fall within the ordinance’s exclusions from the list of conditional uses
because, although it is an “essential public utility and service structure,” it is not “similar”
to the listed prohibited uses of railroad yards and public sewage treatment facilities. Le
Sueur County Zoning Ordinance, § 8, subd. 3(J). This reasoning is also consistent with
an additional provision in the ordinance, which expressly allows as a conditional use the
similar energy-related use of commercial wind energy conversion systems. Id., § 8,
subd. 3(Y). Therefore, the county board had authority to grant a CUP for the
construction of the silage-storage facility.
II
Relators also argue that the county board lacked authority to modify its earlier
denial of the CUP. Respondents maintain that relators waived this argument as well, by
1
We note relators’ argument involving another clause of the ordinance, which defines
“essential services” to include additional items “not including structures” that are
“required for protection of the public health, safety or general welfare.” See Le Sueur
County, Minn. Zoning Ordinance, § 4. Relators maintain that because the facility is a
structure, it does not fall within that definition. But because we have concluded that the
facility qualifies as an essential service structure under a different definition, we need not
address this argument.
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failing to raise it before the county board. See Big Lake, 761 N.W.2d at 492. But the
record reflects that, at a public hearing, landowners questioned the county’s authority to
reconsider a previously denied CUP, and the county’s attorney had an opportunity to
respond to that argument. Thus, we conclude that relators adequately raised this issue,
and we decline to consider it waived. See Big Lake, 761 N.W.2d at 491 (requiring that
the county receive “fair notice” of a challenged issue so that it could respond to legal
arguments).
Relators argue that the relevant zoning ordinance precludes the county board from
reconsidering its denial of a CUP within one year after its original decision. That
ordinance provides, relating to CUPs:
SUBDIVISION 4. RECONSIDERATION
Whenever an application for a [CUP] has been considered
and denied by the Board of County Commissioners, a similar
application for a [CUP] affecting the same property shall not
be considered again by the Planning Commission or Board of
County Commissioners for at least one (1) year from the date
of its denial.
Le Sueur County Zoning Ordinance, § 21, subd. 4.
The plain language of subdivision four prohibits reconsideration of “a similar”
application for a CUP within a one-year period. Id. But “a similar” application is not, by
definition, “the same” application. See American Heritage Dictionary of the English
Language 1682 (stating definition of “similar”). Here, respondents did not submit a
different, but similar, application within one year. They never withdrew their initial
application, but simply re-argued for its approval on the merits.
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Further, the county board reconsidered the application following a timely
challenge to its original decision denying the CUP. This court has recognized the
principle that “an administrative agency has a well-established right to reopen, rehear,
and redetermine [a] matter even after a determination has been made.” In re N. Metro
Harness, 711 N.W.2d 129, 135–36 (Minn. App. 2006) (quotation omitted), review denied
(Minn. June 20, 2006). In N. Metro Harness, we held that the Minnesota Racing
Commission could reconsider an application for a Class A racetrack license after
receiving new relevant information, concluding that the commission had inherent
authority to reconsider the application when it acted with diligence. Id. at 132, 136.
The principle of an agency’s inherent authority to reconsider its prior decision is
particularly applicable here, where the county board reconsidered its decision following a
timely petition for certiorari review of the initial CUP denial. The county board was not
precluded from reconsidering its decision on the CUP when an appeal from that decision
was pending. See id. at 136–37; cf. Little v. Arrowhead Regional Corrections, 773
N.W.2d 344, 346 (Minn. App. 2009) (noting that a pending postdecision motion provides
an appropriate basis for deferring appellate review so that the original decision-maker
may address the motion). Under these circumstances, we conclude that the ordinance’s
time limitations for reconsideration do not apply, and the county board was not precluded
from reconsidering its initial denial of respondents’ application for a CUP within a one-
year period.
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III
Relators argue that, even if the county board had authority to reconsider its denial
of the CUP, its action in granting the CUP was unsupported by the facts on record. We
examine whether the county board “acted unreasonably, arbitrarily, or capriciously” in its
decision regarding the CUP. Schwardt, 656 N.W.2d at 386. Our “function is not to
weigh the evidence, but to review the record to determine whether there was legal
evidence to support the zoning authority’s decision.” RDNT, 861 N.W.2d at 76
(quotation omitted). On conflicting evidence, this court generally defers to the judgment
of the zoning authority. Id.
The county board granted the CUP on reconsideration with designated conditions
that included: monitoring the approved state disposal permit, constructing screening,
minimizing spillage, respecting highway weight limits and erecting safety signs,
maintaining standards under a drainage-and-lighting plan, providing a well and toilet
facilities, and complying with the local nuisance ordinance. Relators argue that, even
with these conditions, the CUP did not address additional concerns of road safety, odor,
groundwater contamination, lighting, and wildlife control. A county board may consider
neighborhood opposition to granting a CUP only if it rests on concrete information.
Bartheld v. Cnty. of Koochiching, 716 N.W.2d 406, 413 (Minn. App. 2006). Relators
maintain that their concerns relate to the ordinance Land Use Performance Standards,
including those addressing water pollution, odors, access drives, and screening. See
generally Le Sueur County Zoning Ordinance, § 19, subd. 3. But the CUP required
compliance with a number of these standards, including specific compliance with the
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MPCA disposal permit and engineering standards recommended by the Minnesota
Department of Transportation. And the lighting plan provided for directional lighting to
alleviate lighting concerns for adjacent properties. Under these circumstances, the plan’s
failure to provide additional, site-specific solutions for the landowners’ additional
concerns does not render the decision to approve the CUP unreasonable, arbitrary, or
capricious, and legal evidence sufficiently supports the county board’s approval of the
CUP.
Affirmed.
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