Stuart Hamilton, Relator, vs. County of Stearns, Respondent.

may not be cited except as provided by

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

 STATE OF MINNESOTA

 IN COURT OF APPEALS

 C0-98-1913

Stuart Hamilton,

Relator,

vs.

County of Stearns,

Respondent.

 Filed May 11, 1999

  Reversed

 Amundson, Judge

Stearns County Planning Commission

John R. Koch, Reichert, Wennerm, Koch & Provinzino, P.A., 501 St. Germain, P.O. Box 1556, St. Cloud, MN 56302 (for relator)

Roger S. Van Heel, Stearns County Attorney, Jacqueline M. Schuh, Assistant Stearns County Attorney, 705 Courthouse Square, Administration Center, Room 448, St. Cloud, MN 56303 (for respondent)

Considered and decided by Crippen, Presiding Judge, Amundson, Judge, and Shumaker, Judge.

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

 AMUNDSON, Judge

Relator Stuart Hamilton challenges the Stearns County Planning Commission's denial of his request for an after-the-fact conditional use permit arguing that the denial was unreasonable, arbitrary, and capricious. We reverse.

 FACTS

This is a second appeal from the county planning commission's decision to deny Stuart Hamilton an after-the-fact permit to maintain a dock on his property at Big Watab Lake in Stearns County.

After purchasing lakefront property on Big Watab Lake in 1996, Hamilton decided to build a permanent dock. He hired an engineer to design the dock and to supervise construction. The engineer made inquires about the county's zoning restrictions to the environmental services department, but the county indicated that it did not have jurisdiction over docks in public waters and referred the engineer to the Minnesota Department of Natural Resources (DNR). The DNR issued a dock permit after reviewing the plans, but cautioned that any construction done above the ordinary high water level of the lake might require a permit from the local governmental authority.

Neither Hamilton nor his engineer obtained a permit from the county, but began construction of the dock. After the dock was under construction, the county informed Hamilton that he was in violation of a county shoreline management ordinance that specifies requirements for grading and filling altered lakeshore land.

County ordinances provide for after-the-fact conditional use permits. Hamilton applied for a permit and his engineer attended a public hearing on that application before the county's planning commission. The commission noted opposition by various lake residents. The reasons for the opposition were (1) the dock and retaining walls are out of character on the lake; (2) there is no need for a permanent dock; (3) soil erosion associated with the dock has had a negative impact on the lake; (4) the dock construction closes an access road; (5) a permanent dock sets an undesirable precedent; (6) supporting beams in the water are a safety hazard; and (7) a permanent dock will not withstand ice formation. The first appeal was remanded to the commission because the commission "gave no reason for its decision, nor does the record provide any factual basis for the decision." Hamilton v. County of Stearns, C1-97-1926, 1998 WL297531 (June 3, 1998). On remand, the commission simply adopted the original complaints as its formal findings and included those items in the record as the basis for its decision. The commission voted to deny Hamilton's application and requested that he restore the area to its original condition. Hamilton appealed again.

 D E C I S I O N

Under Minnesota caselaw, when reviewing decisions by local governing bodies in zoning matters, this court applies the same standard of review as that applied when reviewing agency decisions. City of Barnum v. Carlton County, 386 N.W.2d 770, 774 (Minn. App. 1986). An agency's decision is arbitrary and capricious when the decision represents the agency's will, rather than its judgment, Markwardt v. Water Resources Bd., 254 N.W.2d 371, 374 (Minn. 1977), or if the decision is "based on whim or is devoid of articulated reasons." Mammenga v. State, Dep't of Human Services, 442 N.W.2d 786, 789 (Minn. 1989) (emphasis added). If the decision-making body states reasons for its decision, review will be limited to the legal sufficiency and factual basis for those reasons. Swanson v. City of Bloomington, 421 N.W.2d 307, 313 (Minn. 1988).

The denial of a conditional use permit must be based on something more concrete than neighborhood opposition and expressions of concern for public safety and welfare. Barnum, 386 N.W.2d at 778. A commission must, "at a minimum, have the reasons for its decision recorded or reduced to writing and in more than just a conclusory fashion." Honn v. City of Coon Rapids, 313 N.W.2d 409, 416 (Minn. 1981). "[B]y failing to do so [the municipal body] runs the risk of not having its decision sustained." Id. Our role is to assess the legal sufficiency of the reasons given by the municipal body and to determine whether, if legally sufficient, the reasons have a factual basis. C.R. Investments, Inc. v. Village of Shoreview, 304 N.W.2d 320, 324 (1981).

The planning commission is governed by the local ordinance, which states:

Section 1.2 Policy

The uncontrolled use of shorelands of Stearns County, Minnesota affects the public health, safety and general welfare not only by contributing to pollution of public waters, but also by impairing the local tax base. Therefore, it is in the best interests of the public health, safety and welfare to provide for the wise subdivision, use and development of shorelands of public waters. * * *

Section 2.2 Compliance

The use of any shoreland of public waters; the size and shape of lots; the use, size, type and location of structures on lots; the installation and maintenance of water supply and waste treatment systems; the grading and filling of any shoreland area; the cutting of shoreland vegetation; and the subdivision of land shall be in full compliance with the terms of this ordinance and other applicable regulations.

Stearns County Shoreland Management Ordinance Number 161 (1992).

The fundamental problem with the commission's decision was that, although it held a public meeting, listened to comments, and read letters, it failed to state reasons for its decision. After remand, the commission met and again stated in relevant part:

Benson: What we need to do is establish the finding of fact, for the record, regarding the Stuart Hamilton conditional use permit. * * * What we have to do is open the public hearing, create the findings, and then close the public hearing. There is no testimony to be taken or any other comments * * *.

Johnson: Ok, I'm going to open the hearing in regards to Stuart Hamilton, the purpose is to establish the findings of fact for the record. The task of the Planning Commission is to complete the record of the September 18, 1997 meeting by making and recording specific findings of fact. The application was for an after-the-fact conditional use permit for the construction of a permanent dock on Watab Lake. The following are reminders of some of the issues discussed from the transcript of the minutes.

-Allowing this dock would set a precedent for this lake

-This type of dock is out of character in the area

-The steel beams extending out over the lake pose a safety problem for boats and snowmobiles

-The after-the-fact construction is not a basis for granting the permit.

* * * *

Benson: Now we need someone to make a motion accepting those as findings, whatever you guys create as your findings, those are just things that we pulled from the minutes.

Hanson: Is there any other things that we put in there. I remember that, but I can't think of anything else we said about it. I move then that we include those items in the record as our basis for the decision we made.

* * * *

Hall: Those are the only things we talked about....we did talk about the erosion. Safety was a big thing. Changing water level in the winter time.

* * * *

Shay: Maybe we should add that it's in the best interest of the public welfare to regulate this kind of development along the shoreline.

Benson: Is that part of the testimony that we had taken; was that a part of the record that we had?

Hanson: Unquestionably, because we talk - that all calls for the question of safety issues. It's always been our practice to monitor any kind of lakeshore development in terms of what it does to the natural condition of the lake.

The planning commission's reasons for its decision simply encompasses those issues raised in the original complaints by individuals who attended the first meeting. The record does not provide any additional factual basis or reasoning for the denial of the permit. Further, the commission did not explain and apply its findings to the ordinance; instead the commission made conclusory statements. The commission was given an opportunity on remand to articulate the reasoning behind its decision, but utterly failed to do so.

The previous opinion by this court points out that in Earthburners, Inc. v. County of Carlton, 513 N.W.2d 460, 463 (Minn. 1994), the supreme court expressed a reluctance to allow local boards an opportunity to rationalize and justify original decisions on remand. Hamilton, 1998 WL297531 at *2. It appears that this is exactly what happened here. An opportunity was given to the commission to scrutinize the record and to make a decision supported by the record, but again it failed to articulate the reasoning behind that decision.

  Reversed.