Opinion
No. A03-2062.
Filed October 12, 2004.
Appeal from the Sherburne County Board of Commissioners.
John L. Greer, Jeffrey Blease, Blease Zuccaro, Llp, (for relator).
Matthew A. Anderson, James M. Neilson, Babcock, Neilson, Mannella, LaFleur Klint, P.L.L.P., (for respondents Dave and Lori Roggenkamp).
Jay T. Squires, Stacey L. Wilson, Ratwik, Roszak Maloney, P.A., and Kathleen A. Heaney, Sherburne County Attorney, Arden J. Fritz, Assistant County Attorney, (for respondent County of Sherburne, by its Board of Commissioners).
Considered and decided by Klaphake, Presiding Judge; Peterson, Judge; and Hudson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Relator Diamond A Farm argues that the issuance of a conditional-use permit (CUP) by respondent Sherburne County Board of Commissioners to respondent-landowners Lori Roggenkamp, f/k/a Lori Jean Toft Wood, and Dave Roggenkamp was arbitrary, capricious, and unreasonable because the board failed to (1) consider whether the proposed greenhouse/nursery business met the standards of the county zoning ordinance and (2) adopt the planning commission's recommendation to deny the CUP. We affirm.
FACTS
The Roggenkamps submitted an application for a CUP to operate a greenhouse/nursery business on their 6.16-acre parcel of property located in Haven Township, Sherburne County. As part of the application process, the planning commission requested input from Haven Township and the Minnesota Department of Natural Resources. The township initially reacted favorably to the proposal but later changed its position after learning of opposition from neighboring property owners.
Concerns expressed by neighbors included: the proposed business was inconsistent with the character of the immediate area; increased traffic, resulting in noise pollution and interference with neighborhood recreational activities; increased crime; devaluation of neighboring properties; and the adverse effect of the proposed business on a wetland area on the Roggenkamps' property.
The planning commission held a public hearing on the Roggenkamps' application on October 16, 2003. At the hearing, the planning commission discussed similar requests that had been approved by the county during the preceding four years and neighboring property owners' opposition to the application. The planning commission recommended denying the application.
The board declined to adopt the planning commission's recommendation and granted the CUP. The permit was subject to conditions limiting the size of the greenhouse, the number of employees and times of operation, and the services provided.
DECISION
Decisions of a county to grant or deny a CUP are quasi-judicial and are reviewed by writ of certiorari. Picha v. County of McLeod, 634 N.W.2d 739, 741 (Minn.App. 2001). Decisions to approve or deny a CUP are generally upheld unless this court's independent review determines that the decision was arbitrary, capricious, or unreasonable. Yang v. County of Carver, 660 N.W.2d 828, 832 (Minn.App. 2003). A county's approval of a CUP is traditionally subject to more deferential review than CUP denials. Schwardt v. County of Watonwan, 656 N.W.2d 383, 389 n. 4 (Minn. 2003); Sunrise Lake Ass'n, Inc. v. Chisago County Bd. of Comm'rs, 633 N.W.2d 59, 61 (Minn.App. 2001).
A grant of a CUP is first reviewed "to determine whether the county's explanation of its reasons for granting the CUP are sufficient to allow judicial review." Sunrise Lake Ass'n, 633 N.W.2d at 61. An order granting a CUP must demonstrate the county's conclusion that the proposal has satisfied each of the ordinance's conditions for approval. Schwardt, 656 N.W.2d at 389; see also Minn. Stat. § 394.301, subd. 1 (2002) (stating that "[c]onditional uses may be approved upon a showing by an applicant that standards and criteria stated in the ordinance will be satisfied"). Although counties need not prepare formal findings of fact, the reasons for their decisions must, at a minimum, be recorded or reduced to writing in more than a conclusory fashion. Picha, 634 N.W.2d at 742 (minutes noting that the reasons for denying the CUP were "incompatibility with current use of the land and to avoid setting a precedent of allowing private cemeteries" were inadequate findings).
The Sherburne County zoning ordinance lists farm-related business as a conditional use in agricultural-zoned districts. Sherburne County, Minn., Zoning Ordinance § 7, subd. 3.5 (2001). Farm-related businesses are defined as:
Sherburne County, Minn., Zoning Ordinance § 7, subd. 3.17 (2001), lists "[n]ursery, retail" as a conditional use in agricultural-zoned districts, but the ordinance does not define a retail nursery.
Business directly related to the conduct of commercial agriculture, provided:
A. The business is primarily farm-related under one or more of the following criteria:
. . . .
2. The business produces a product or involves a process that utilizes locally grown or produced commodities.
3. The business involves sales and/or purchasing of products of the local agricultural economy or of goods unique and necessary to agricultural operations.
B. Sewage is treated by an on-site sewage system and in accordance with Section 17 of this Ordinance.
C. The business is of a scale that the demand for support services such as sewer, water, police, fire protection, roads or streets, can be accommodated within the context of the service levels available in the Agricultural District.
D. The business is operated in conformance with the conditions of an approved plan of operation.
E. The applicant submits a copy of Workers' Compensation Insurance or signs an affidavit stating that he will not have any employees.
Sherburne County, Minn., Zoning Ordinance § 16, subd. 2.15 (2002).
Diamond A Farm argues that because nothing in the record of the board's decision demonstrates that the board determined, or even considered, whether the proposal met the requirements of the zoning ordinance, the board acted arbitrarily, capriciously, and unreasonably. See Crystal Beach Bay Ass'n, Island View Route, Int'l Falls v. County of Koochiching, 309 Minn. 52, 55, 243 N.W.2d 40, 42 (1976) (stating that although "a prima facie case of arbitrariness exists if the county board's decision is not accompanied by findings to show that its action was reached upon a consideration of the facts and was based upon reason rather than the mere individual whim of the . . . members, . . . this prima facie case may be rebutted if there is evidence in the recorded hearing testimony from which the reviewing court can ascertain a reasonable basis for the county board's action") (quotation omitted); see also Graham v. Itasca County Planning Comm'n, 601 N.W.2d 461, 467 (Minn.App. 1999) (concluding in a variance case that "the absence of detailed findings is not fatal if substantial evidence in the record supports the board's application of the ordinance").
The board expressly found that "[t]he conditions in Sec. 16, Subd 2, Item 15 Farm Related Business are met," and the record contains evidence showing that the proposed greenhouse/nursery business meets those conditions. The business will involve on-site growing and selling of vegetables, herbs, flowers, and trees. Sewage is treated by a septic system that was upgraded in July 2003. The size of the business is one 3,000-square-foot greenhouse. The Roggenkamps submitted a statement that they will have no employees.
The CUP granted to the Roggenkamps also sets forth the following limiting conditions:
a) Only one 3,000 sq. ft. greenhouse will be allowed. When/if additional greenhouses are requested, the CUP will need to be amended[;]
b) This is a seasonal business. Open April through October both wholesale and retail operations[;]
c) No more than two employees other than homesteaded property owners, regardless of full-time/part-time[;]
d) One on-premise 12 square foot business sign will be permitted[;]
e) Property owners will not be providing landscaping services or stocking landscaping products;
f) All equipment supplies and products (other than flowers and plants) will be stored in the existing pole barn;
g) Open weekdays from 10:00 a.m. to 8:00 p.m. and weekends 10:00 am to 6:00 p.m.;
h) The Public Works Department — no new access will be permitted to this parcel from Co. Hwy. 60. They reserve the right to review the CUP if there are traffic related problems or this is a significant change in use[;]
i) Chemicals used for greenhouse/nursery business must be disposed of according to MPCA and County Ordinances[;]
j) Property owner will have a minimum of six (6) parking spaces available for customers[.]
The record demonstrates that the board determined that the proposed greenhouse satisfied the ordinance requirements for a farm-related business and that the board's decision was based on reason and the board's consideration of the facts.
Diamond A Farm also argues that there is no evidence in the record showing that the board made the findings required by, or even considered the requirements of, subdivision 5.3 of section 18 of the zoning ordinance, which states:
No Conditional Use Permit shall be approved or recommended for approval by the County Planning Commission unless said Commission shall find:
1. That the Conditional Use will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted, nor substantially diminish and impair property values within the immediate vicinity.
2. That the establishment of the Conditional Use will not impede the normal and orderly development and improvement of surrounding vacant property for uses predominant in the area.
3. That adequate utilities, access roads, drainage and other necessary facilities have been or are being provided.
4. That adequate measures have been or will be taken to provide sufficient off-street parking and loading space to serve the proposed use.
5. That adequate measures have been or will be taken to prevent or control offensive odor, fumes, dust, noise and vibration, so that none of these will constitute a nuisance, and to control lighted signs and other lights in such a manner that no disturbance to neighboring properties will result.
Sherburne County, Minn., Zoning Ordinance § 18, subd. 5.3 (2000). The ordinance requires the planning commission, not the board, to make findings before the commission approves a CUP or recommends a CUP for approval. Id. The planning commission did not recommend approval of the CUP; it recommended denying the application. Also, the limiting conditions that the board placed on the CUP relate to several of the factors addressed in Sherburne County, Minn., Zoning Ordinance § 18, subd. 5.3, which indicates that the board specifically considered the relevant criteria for granting a CUP.
The limiting conditions do not demonstrate that the board specifically considered the concerns expressed by some neighbors that the greenhouse/nursery business will increase crime and reduce the value of neighboring property, but,
[w]hen a use permit is approved, the decision-making body is always implicitly giving the same reason — all requirements for the issuance of the permit have been met. Under these circumstances, that body should not have to find negatively that alleged failures to meet requirements are without merit. The burden is fairly on those who would challenge that body's decision to establish the alleged failures and show an abuse of discretion.
Corwine v. Crow Wing County, 309 Minn. 345, 352, 244 N.W.2d 482, 486 (1976) (standard of judicial review clarified in Northwestern College v. City of Arden Hills, 281 N.W.2d 865 (Minn. 1979)). "[D]enial of a conditional use must be based on something more concrete than neighborhood opposition and expressions of concern for public safety and welfare." Chanhassen Estates Residents Ass'n v. City of Chanhassen, 342 N.W.2d 335, 340 (Minn. 1984).
Diamond A Farm also argues that the board's decision was arbitrary, capricious, and unreasonable because the board declined to follow the planning commission's recommendation without explaining its reasons for doing so. But the fact that the board acted against the recommendation of the planning commission does not make its decision arbitrary. Schwardt, 656 N.W.2d at 386 n. 1. Diamond A Farm cites no legal authority that requires the board to explain its reasons for not following the planning commission's recommendation. See Bloom v. Hydrotherm, Inc., 499 N.W.2d 842, 845 (Minn.App. 1993) (stating to obtain reversal of a judgment, a party must show error and resulting prejudice), review denied (Minn. June 28, 1993).