Brian Winczewski, Relator v. Becker County Board of Commissioners, Osage Sportsman Club, Inc., n/k/a Osage Sportsmens Club, Inc.

• Court: Court of Appeals of Minnesota
• Decided: August 1, 2016
• Docket: A15-1911
• Status: Unpublished

Opinion

This opinion will be unpublished and may not be cited except as provided by Minn.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 A15-1911

Brian Winczewski, Relator,

vs.

Becker County Board of Commissioners, et al., Respondents,

Osage Sportsman Club, Inc., n/k/a Osage Sportsmens Club, Inc., Respondent.

Filed August 1, 2016 Reversed Klaphake, Judge *

Becker County Board of Commissioners

James H. Perkett, Law Office of James Perkett, P.L.L.C., Park Rapids, Minnesota (for relator)

Scott T. Anderson, Rupp, Anderson, Squires & Waldspurger, PA, Minneapolis, Minnesota (for respondent Becker County Board of Commissioners, et al.)

Jonathan D. Frieden, Thomason, Swanson & Zahn, PLLC, Park Rapids, Minnesota (for respondent Osage Sportsman Club, Inc., n/k/a Osage Sportsmens Club, Inc.)

Considered and decided by Reilly, Presiding Judge; Smith, Tracy M., Judge; and

Klaphake, Judge.

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 UNPUBLISHED OPINION

KLAPHAKE, Judge

Relator Brian Winczewski challenges respondent Becker County Board of

Commissioner’s (the county board) issuance of a conditional-use permit (CUP) allowing

respondent Osage Sportsman Club, Inc. (the Club) to expand its shooting range, arguing

that the county acted in an unreasonable, arbitrary, and capricious manner because it failed

to make legally sufficient findings as set forth in the county zoning ordinance. Because

neither the county board nor the Becker County Zoning and Planning Commission

(planning commission) made sufficient findings to support its zoning decision, we reverse.

DECISION

A county board’s decision on whether to issue a CUP is quasi-judicial and

reviewable by an appellate court by writ of certiorari. Interstate Power Co. v. Nobles Cty.

Bd. of Comm’rs, 617 N.W.2d 566, 574 (Minn. 2000). The standard of review is a

deferential one, as counties “have wide latitude in making decisions about special use

permits.” Schwardt v. Cty. of Watonwan, 656 N.W.2d 383, 386 (Minn. 2003). Appellate

courts give more deference to a decision approving a CUP than to a decision denying one.

Id. at 389 n.4. An appellate court will “review a county’s decision to approve a CUP

independently to see whether there was a reasonable basis for the decision, or whether the

county acted unreasonably, arbitrarily, or capriciously.” Id. at 386.

Counties are authorized to carry out planning and zoning activities for the purpose

of promoting the health, safety, morals, and general welfare of its community. Minn. Stat.

2 § 394.21, subd. 1 (2014). As a zoning tool, a CUP may be approved by a planning

commission “upon a showing by an applicant that standards and criteria stated in the

ordinance will be satisfied.” Minn. Stat. § 394.301, subd. 1 (2014).

To show that Becker County acted unreasonably, relator must show that the county

did not meet the zoning-ordinance standards and that granting the CUP was an abuse of

discretion. In re Block, 727 N.W.2d 166, 177–78 (Minn. App. 2007). In determining

whether the county acted unreasonably, an appellate court follows a two-step process: first

we examine whether the reasons given by the county were legally sufficient; second, if the

reasons are legally sufficient, we must determine whether “the reasons had a factual basis

in the record.” RDNT, LLC v. City of Bloomington, 861 N.W.2d 71, 75–76 (Minn. 2015).

The Becker County Zoning Ordinance provides that no CUP shall be recommended

or granted unless the planning commission or county board finds that the following criteria

are met:

1. [E]ffect on surrounding property. That the conditional use will not harm the use and enjoyment of other property in the immediate vicinity for the purposes already permitted, nor substantially diminish or impair property values within the immediate vicinity.

2. [E]ffect on orderly, consistent development. That establishing the conditional use will not impede the normal, orderly development and improvement of surrounding vacant property for uses predominant in the area.

3. Adequate facilities. That adequate utilities, access roads, drainage and other necessary facilities have been or are being provided.

3 4. Adequate parking. That adequate measures have been or will be taken to provide sufficient off-street parking and loading space to serve the proposed use.

5. Not a nuisance. That adequate measures have been or will be taken to prevent or control offensive odor, fumes, dust, noise and vibration, so none of these will constitute a nuisance, and to control lighted signs and other lights so that no disturbance to neighboring properties will result.

Becker County, Minn., Zoning Ordinance (BCZO) ch. 8, § 11(F) (2015). In addition,

because the Club’s land is within 1,000 feet of a lake and is considered “shoreland,” the

county must find that (1) adequate measures are taken to prevent pollution of public waters,

(2) visibility of structures from the water is limited, (3) the site has adequate utilities for a

water supply and on-site sewage treatment, and (4) watercraft can safely be accommodated.

Id. ch. 8, § 11(F)(6); BCZO ch. 10, § 2 (2015) (defining “shoreland”).

The record establishes that neither the county board nor the planning commission

issued formal findings. The record documenting the county’s decision-making consists of

the planning commission’s October 13, 2015 meeting minutes and the county board’s

October 20, 2015 meeting minutes. Generally, findings are necessary for judicial review

of a zoning decision. Kehr v. City of Roseville, 426 N.W.2d 233, 237 (Minn. App. 1988)

(stating that the failure to provide findings inhibits effective judicial review), review denied

(Minn. Sept. 16, 1988). A county board’s failure to make critical findings required by a

zoning ordinance is a “significant omission” because “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.” Crystal Beach Bay Ass’n v. Cty. of Koochiching,

4 309 Minn. 52, 55, 243 N.W.2d 40, 42 (1976) (quotation omitted). This court has reversed

a decision to issue a CUP when a county board simply accepted the planning commission’s

recommendation without a statement of reasons, and the planning commission’s decision

relied on inadequate findings. Sunrise Lake Ass’n v. Chisago Cty. Bd. of Comm’rs, 633

N.W.2d 59, 61-62 (Minn. App. 2001).

The county board’s October 20, 2015 minutes, like those in Sunrise Lake, are

insufficient because they include no reasons for granting the CUP. The county board’s

minutes reveal that the board simply voted to concur with the planning commission’s

decision. At the October 13, 2015 public hearing, the planning commission also failed to

provide sufficient reasons for granting the CUP. The meeting minutes show that the

planning commission failed to examine the list of standards set forth in the ordinance and

failed to consider many of the ordinance’s criteria. For example, despite significant

concerns by community members and some commissioners, the planning commission

made no findings as to whether the noise levels, safety issues, and increased use due to the

expansion of the Club would harm the use and enjoyment of nearby residents’ property, as

required by BCZO ch. 8, § 11(F)(1). The planning commission also made no findings that

the CUP would not impede the normal development of surrounding property for uses

predominant in the area, per chapter 8, section 11(F)(2), an issue raised by one resident.

Besides discussion of permits for storm-water drainage, there is no record that the planning

commission considered the adequacy of the facilities for the Club’s expansion, as required

by chapter 8, section 11(F)(3). Parking and traffic were not discussed, as required by

chapter 8, section 11(F)(4), although part of the CUP included a new parking area.

5 The planning commission discussed the noise issues surrounding the Club’s

expansion at the public hearing, but there is no evidence that measures adequate to prevent

or control a nuisance have been or will be taken, as required by chapter 8, section 11(F)(5).

Despite the noise concerns, the issued CUP contains no written condition that the Club

must plant spruce trees, limit hours, or install fences for noise abatement before expansion.

The minutes also show that the planning commission considered only the safety of the

trapshooting lanes but not the expansion or rearrangement of the rifle range. 1

An agency’s decision is arbitrary or capricious if it entirely fails to consider an

important aspect of the problem. Pope Cty. Mothers v. Minn. Pollution Control Agency,

594 N.W.2d 233, 236 (Minn. App. 1999). The planning commission acted unreasonably

by failing to consider safety issues surrounding the expanded or rearranged rifle range—

an important aspect of the problem in issuing the CUP—and by failing to place written

conditions on the CUP to mitigate noise and safety concerns.

In regard to the Club’s conversion of forestland within a “shoreland” area, which is

permitted as a conditional use under BCZO ch. 6, § 7 (2015), Becker County made no

findings that the chapter 8, section 11(F) criteria were satisfied, nor did it make findings

that the land-alteration standards were met.

1 The record conflicts as to whether the Club’s 250-yard rifle range is an expansion, or rearrangement. Maps submitted with the CUP application show a longer range, and Club members referred to the changes as an “expansion” of the range at the public hearing. The CUP generally refers to an expansion of the shooting range, but specifically lists a “rearrangement of the 250-yard range.”

6 Becker County argues, citing Graham v. Itasca Cty. Planning Comm’n, 601 N.W.2d

461, 467 (Minn. App. 1999), that even if the findings are inadequate, we may examine the

record to determine if the evidence supports the county’s decision. In Graham, “substantial

evidence” existed in the record for this court to independently determine whether the

appellant suffered hardship to qualify for a zoning variance. Id. But here, the record does

not contain substantial evidence for us to independently determine whether the CUP

application met the zoning-ordinance criteria. Becker County also cites Haen v. Renville

Cty. Bd. of Comm’rs, in which this court said, “When an application for a special use permit

is approved, the decision-making body has implicitly determined that all requirements for

the issuance of the permit have been met.” 495 N.W.2d 466, 471 (Minn. App. 1993),

review denied (Minn. Mar. 30, 1993). However, in Haen, each commissioner orally listed

the reasons for his or her decision, allowing this court to review the county’s decision. Id.

at 468. Furthermore, the ordinance in question in Haen did not require written findings of

fact to support issuance of a CUP. Id. at 471. Here, the zoning ordinance requires the

planning commission to report its findings and recommendations to the county board.

BCZO, ch. 8, § 11(D) (2015). Unlike in Graham and Haen, we cannot ascertain from the

record whether Becker County could reasonably find that the CUP requirements in the

zoning ordinance were met.

In sum, because the Becker County issued the CUP without explaining why the

zoning-ordinance criteria were satisfied, and because we cannot ascertain from the record

whether the county could reasonably find that the CUP requirements in the zoning

7 ordinance were met, we reverse. Because we reverse for insufficient findings, we do not

reach relator’s additional arguments.

Finally, when a municipality’s decision lacks any findings or explanations of its

decision to facilitate judicial review, reviewing courts typically remand for additional fact

finding. See, e.g., Earthburners, Inc. v. Cty. of Carlton, 513 N.W.2d 460, 462 (Minn.

1994). But here, Becker County argues that aside from the forestland conversion, the

zoning ordinance does not require that the Club, which is a nonconforming-use property,

obtain a CUP in order to expand its shooting range. The interpretation of a zoning

ordinance presents a question of law, which we review de novo. Sunrise Lake Ass'n, 633

N.W.2d at 62. The zoning ordinance does not list a shooting range as a permitted or

conditional use in an agricultural zone. BCZO ch. 5, § 1 (2015). Because this issue was

not raised on appeal, we express no opinion on whether the expansion of the Club involves

uses that may be allowable under a CUP because they are “of the same general character”

as those uses listed in the ordinance. See id. § 1(D) (providing that the Becker County

Board of Adjustment may deem a use as “fitting and compatible” to a district where the

specific use is not listed in the ordinance but is “of the same general character” of other

listed uses). We also express no opinion on whether the Club’s expansion is permissible

under the nonconforming use section of the zoning ordinance, as this issue was not raised

on appeal. Because Becker County argues that a CUP is not required for the Club’s

expansion, and we find nothing in the ordinance plainly allowing the Club to obtain a CUP

for its proposed uses, additional fact finding on remand would be fruitless.

Reversed.