Ronald Magone, et al., Appellants, vs. Denmark Township, Respondent

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-02-1932

 

Ronald Magone, et al.,

Appellants,

 

vs.

 

Denmark Township,

Respondent.

 

Filed July 3, 2003

Reversed and remanded Willis, Judge

 

Washington County District Court

File No. C9015904

 

Jack W. Clinton, 7616 Currell Avenue, Suite 200, Woodbury, MN  55125 (for appellants)

 

William L. Moran, Ricardo Figueroa, Murnane, Conlin, White & Brandt, P.A., 1800 US Bancorp Piper Jaffray Plaza, 444 Cedar Street, Saint Paul, MN  55101 (for respondent)

 

            Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellants challenge the district court's order affirming respondent's denial of a conditional-use permit.  Because we conclude that denial of the permit was unreasonable, arbitrary, and capricious, we reverse and remand.

FACTS

            Appellants Ronald and Helen Magone are the owners of an 80-acre parcel of land in Denmark Township, Washington County.  The land is in the A-1 zoning district, which is "utilized for interim agriculture and commercial food production."  Denmark Township, Minn., Zoning Ordinance § 601.01 (1982).   In August 1998, the Magones and appellant Rumpca Excavating, Inc. applied to respondent Denmark Township for a conditional-use permit to operate a gravel mine on the Magones' land.

            After a preliminary review, the Denmark Township Planning Commission referred the permit application to Washington County for completion of an environmental assessment worksheet (EAW).  The county completed the EAW in early 2000 and concluded that it anticipated no "[a]dverse impacts and issues" related to the proposed mine.

During a subsequent public-comment period in June 2000, at least six government agencies reviewed the EAW and commented on it.  A senior environmental specialist with the county stated that the proposed mine would have "no impact to groundwater quality."  The Metropolitan Council reported that the proposal raised "no major issues of consistency with the Council's regional policies."  The Washington County Soil and Water Conservation District opined that the EAW provided inadequate data and analysis about the proposed mine's impact on water resources, erosion, and sedimentation.  And the Denmark Township Board commented that the EAW lacked sufficient detail.  The board expressed concern about noise and dust control and the protection of groundwater.

In August 2000, after reviewing the comments generated during the public-comment period, the county revised the EAW.  The Washington County Soil and Water Conservation District stated in a subsequent letter that the concerns that it had expressed about the earlier version of the EAW had been addressed and that it could "make a recommendation for a negative declaration on the need for an [environmental-impact statement] based on water resource concerns."  The Washington County Board of Supervisors reviewed the revised EAW and concluded that it was adequate and that an environmental-impact statement was unnecessary.  The board of supervisors found that the proposed mine did not "have potential for significant environmental effects."

            After the county accepted the EAW and declined to require an environmental-impact statement, the planning commission continued to review appellants' permit application, discussing it at two meetings in January 2001.  The township's planner informed the commission that the proposed mine would comply with the zoning ordinance if the permit were subject to certain conditions, and the planner recommended 16 such conditions.  The township's engineer reported that "the addition of 75 trucks in and out of the [proposed mine] does not trigger any traffic volume issues," and he further stated that "[d]ust control may rise to a level that would require the road to be paved."  Notwithstanding the recommendations of the planner and engineer, the commission voted to recommend denial of the permit and forwarded the issue to the township board.

The board held hearings on the permit application in February and March 2001.  Board members expressed concern that the proposed mine would adversely affect "prime farmland."  The township planner reported that only 22% or so of the Magones' land consisted of "prime agricultural soils."  He further noted that the land "is not ideal for long-term agricultural operations" because of the "low proportion of prime soils, the sloping terrain, susceptibility to erosion and the thin soil depth."

Township residents voiced opposition to the proposed mine because of concerns that it would have a negative effect on property values.  One resident submitted a report in which she concluded that the proposed mine would "seriously depreciate the surrounding property values."  She based her conclusion on a comparison between land values for nine lots in the Hidden Valley subdivision, which is near the site of one of Rumpca's existing gravel mines, and values in a development one to two miles away.  She found that values for comparable lots were higher in the development that is farther from the existing mine. 

But an analysis of the properties in the Hidden Valley subdivision showed that five of the nine lots had increased in value in the preceding 18 months.  Further, the developer of Hidden Valley stated that he had "successfully developed" land adjacent to mining operations for residential homes since 1985.  The developer opined that, based on his experience, the proposed mine "will not adversely affect the property values" of the surrounding land.  A representative of the Washington County Assessor's Office reported that location near a gravel mine "does not appear to be a negative influence" on the sale prices of homes.

Board members and residents also voiced concern about the potential for impact on water resources and traffic congestion.  The planner reported that the Magones' land is more than 1,000 feet from a public waterway and is therefore not within the "shoreland overlay zoning district."  Testimony also showed that Washington County and the Minnesota Department of Natural Resources agreed that the land is not within a shoreland district.  The township's engineer reviewed four possible routes for trucks to use when entering and leaving the proposed mine and stated that each was safe for "large trucks."  The engineer recommended two of the routes, which he said are equivalent.  He identified potential problems with each of the recommended routes but stated that all issues could be addressed through improvements to the existing roads.

            After the February and March 2001 hearings, the board denied appellants' application, finding that issuance of the permit (1) would be "detrimental to the health, safety, convenience, [and] general welfare" of the community; (2) would "cause serious traffic congestion and hazards"; (3) would "seriously depreciate the surrounding property values"; and (4) would not be "in harmony with the general purpose and intent of the Zoning Ordinance and the Comprehensive Plan."

            At about the same time that it denied appellants' application, the board approved a  renewal of the conditional-use permit for the Tiller gravel mine.  The Tiller mine has been in operation since 1939, and a five-year permit for its operation was to expire on January 23, 2001.  The mine is located in an A-2 zoning district, which provides "rural low density housing in agricultural districts on lands not capable of supporting long term, permanent commercial food production."  Denmark Township, Minn., Zoning Ordinance § 601.01.  A senior land use specialist with the county noted that a soil survey identified "some of the soils on the [Tiller] property as prime agricultural land."  In recommending approval of the new permit, the town planner suggested conditions including requirements for (1) fencing and warning signs; (2) limits on hours of operation; (3) control of dust and noise; (4) appropriate fuel storage to prevent soil and water contamination; and (5) groundwater monitoring.

Appellants challenged the board's decision on their application in the district court.  Both parties moved for summary judgment, and the court granted summary judgment to the township.  This appeal follows.

D E C I S I O N

On appeal from a district court's decision affirming a municipality's denial of a conditional-use permit, this court independently reviews the record and the municipality's decision "without affording any special deference" to the district court's review.  Scott County Lumber Co. v. City of Shakopee, 417 N.W.2d 721, 726 (Minn. App. 1988), review denied (Minn. Mar. 23, 1988).  If denial of a permit is not unreasonable, arbitrary, or capricious, it will be upheld on appeal.  Honn v. City of Coon Rapids, 313 N.W.2d 409, 416-17 (Minn. 1981).  When the municipality states its reasons for denying a permit, we assess the legal sufficiency of the reasons given and determine whether, if legally sufficient, they have a factual basis.  C.R. Invs., Inc. v. Village of Shoreview, 304 N.W.2d 320, 325 (Minn. 1981).  When a zoning ordinance specifies the standards that must be applied in determining whether to grant a conditional-use permit and the applicant fully complies with the specified standards, denial of the permit is arbitrary as a matter of law.  Hay v. Township of Grow, 296 Minn. 1, 5, 206 N.W.2d 19, 22 (1973).

            Appellants argue that the board's decision is unreasonable, arbitrary, and capricious.  They contend that they have complied with the standards set forth in the applicable zoning ordinance and that the board's stated reasons for denying the permit are legally insufficient or lack a factual basis.  Denmark Township's zoning ordinance provides that the board may grant a conditional-use permit for mining on land zoned for agricultural use.  Denmark Township, Minn., Zoning Ordinance §§ 505.01, 604 (1982).  The board may grant a conditional-use permit if the proposed use (1) "will not be detrimental to the health, safety, convenience, morals, or general welfare of the Community"; (2) will not "cause serious traffic congestion" or hazards; (3) will not "seriously depreciate surrounding property values"; and (4) "is in harmony with the general purpose" of the Denmark Township Zoning Ordinance and Comprehensive Plan.  Id. § 505.01.

Health, safety, convenience, and general welfare of community

            The board found that the equipment to be used in operation of the gravel mine is "noisy and dusty" and that the trucks used to remove the gravel from the area of the mine would "increase the noise and dust to the surrounding area."  But the record shows that the township's planner recommended conditions for the permit that would adequately address concerns regarding noise and dust.  The conditions included paving the access road to the mine, limiting the number of truck trips to and from the mine each day, and instituting a "vibration/noise monitoring program."  The Tiller permit, which the board approved, is subject to identical conditions.

            The board also found that the proposed mine is "in close proximity to rural residential developments [and] will seriously depreciate the surrounding property values."  The evidence in the record shows otherwise.  Although one resident submitted anecdotal evidence of differences in property values depending on proximity to an existing gravel mine, there is ample evidence that the proposed mine would not seriously decrease property values and might even result in increased values.  And the township planner suggested a condition on the permit to require the Magones and Rumpca to submit a "final Restoration Plan" describing how they plan to restore the "grading, soil depths, slopes, and vegetation" of the land when the mining operation is completed.

            The board further found that there was conflicting information in the record regarding the proposed mine's impact on the adjacent watershed and found that it "must move to protect the water resource by denying" appellants a permit.  Again, the evidence in the record shows otherwise.  The Magones' land is not within a shoreland district, and the agencies that reviewed the EAW identified no potential risks to water resources.

Traffic congestion and hazards

            The board found that there were insufficient "site distances * * * for some of the accesses for both vehicular and pedestrian traffic" and that all of the suggested accesses would "lead to increased traffic congestion and are not in harmony with the surrounding community."  But the township engineer stated unequivocally that the proposed mine did not pose any problems with increased traffic volume and that any problems with the suggested routes could be solved.  The engineer recommended paving the access road, and the township planner's suggested conditions include paving and limits on truck traffic. 

Harmony with general purpose of zoning ordinance and comprehensive plan

            The township's zoning ordinance and comprehensive plan both seek to protect and preserve economically viable agricultural land.  See Denmark Township, Minn., Zoning Ordinance § 202(13); Denmark Township Comprehensive Plan 10 (1999).  Further, section 302.04(3) of the zoning ordinance permits issuance of a conditional-use permit for mining only if "the land involved is not considered prime agricultural land as defined by the [Washington County] Soil Conservation Service."  The board found that appellants' proposed use "impacts prime agricultural soils" and does not promote the preservation of agricultural land.  But nothing in the record suggests that the Magones' land is considered "prime agricultural land."  And the township planner reported that the land is not well suited for agriculture.  Further, the Tiller mine property similarly contains some "prime agricultural" soils.

            The ordinance and plan also seek to maintain and enhance the value of land throughout the township.  See Denmark Township, Minn., Zoning Ordinance § 202(9); Denmark Township Comprehensive Plan 10.  As discussed earlier, the record does not support the board's finding that the proposed mine will seriously depreciate the value of land adjacent to the Magones' property.  While the comprehensive plan seeks to preserve "surface waters and wetland areas to protect natural habitats, ground water quality and aesthetic qualities," Denmark Township Comprehensive Plan 12, the board's finding regarding potential damage to water resources is similarly unsupported by the record.

Finally, the zoning ordinance is intended to "limit congestion in public streets" and  "prevent environmental pollution."  Denmark Township, Minn., Zoning Ordinance § 202(5), (7).  The evidence shows that the proposed mine will not add to traffic congestion.  Further, the county's acceptance of the EAW and negative declaration on the need for an environmental-impact statement show that the proposed mine raises no serious issues about environmental pollution.  And the township's planner recommended conditions, identical to those on the Tiller permit, that require groundwater testing and the safe storage of fuel and other contaminants.

             While the township board was free to consider the concerns of township residents, such concerns "may not constitute the sole basis for granting or denying a given permit."  Northwestern Coll. v. City of Arden Hills, 281 N.W.2d 865, 869 (Minn. 1979).  Here, residents expressed concerns about the noise and dust that the proposed mine would create and the adverse impact it would have on traffic congestion, property values, and water resources.  But the evidence in the record shows that such concerns are unfounded.  Further, the Tiller mine presents many of the same issues as the mine proposed for the Magones' land.  The board's concerns can be addressed through conditions on the Rumpca/Magone permit similar to those on the Tiller permit. 

We conclude that the township's denial of a conditional-use permit allowing appellants to operate a gravel mine was unreasonable, arbitrary, and capricious because the reasons given for the township's decision are legally insufficient or lack a factual basis in the record.  The district court erred by granting summary judgment to the township and denying summary judgment to appellants.  We therefore reverse the district court's order and remand for issuance of an order directing the township to issue to appellants a conditional-use permit, which may be made subject to reasonable conditions as discussed in this opinion.  Because we conclude that denial of appellants' application for a conditional-use permit was unreasonable, arbitrary, and capricious, we need not address their argument that the denial of their permit application violated their constitutional right to equal protection of the laws.

Reversed and remanded.