Rodney Omann, Relator, vs. Stearns County Board of Commissioners, 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This opinion will be unpublished and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

A03-2047

 

 

Rodney Omann,

Relator,

 

vs.

 

Stearns County Board

of Commissioners,

Respondent.

 

 

Filed September 21, 2004

Affirmed; motion denied
Klaphake, Judge

 

Stearns County Board of Commissioners

 

 

Ryan J. Hatton, Rinke-Noonan Law Firm, P.O. Box 1497, 1015 West St. Germain Street, Suite 300, St. Cloud, MN 56301 (for relator)

 

Janelle Prokopec Kendall, Stearns County Attorney, 705 Courthouse Square, St. Cloud, MN 56303; and

 

Jason J. Kuboushek, Paul D. Reuvers, Iverson Reuvers, LLC, 9321 Ensign Avenue South, Bloomington, MN 55438 (for respondent)

 

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

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            On appeal from the denial of a preliminary plat for a subdivision, relator argues that (1) his application satisfied the subdivision ordinance; (2) the nitrate nitrogen provision of the ordinance was vague; (3) the county improperly used nitrate levels to deny the application; and (4) the county failed to make findings supporting its decision.  Because the ordinance adequately informed landowners of the requirements for subdivision approval, the well tests showed above-standard nitrate levels, and the record and findings allowed this court to evaluate noncompliance, we affirm.  The county's motion to strike an exhibit from relator's appendix is denied.

FACTS

 

            Relator Rodney Omann and his wife, as owners and developers of "Pine Point Court," submitted their preliminary plat application to the Stearns County Environmental Services Department.  The county set the matter on the platting committee agenda and notified the Omanns that a well must be installed and a test for nitrate nitrogen completed prior to final plat approval.  The letter stated that "[a] nitrate nitrogen intervention level of 5 milligrams per liter or greater shall be considered as an unsuitable water supply." 

            On March 20, 2003, before the Omanns had obtained well test results, the planning commission considered and continued consideration of the preliminary plat. Neighbors testified that they had the following concerns: (1) the density of the subdivision could contaminate nearby wells and ground water; (2) their nitrate level was already too high; and (3) the road might not sustain the increased use. On April 17, the planning commission considered and recommended denying the preliminary plat.

            The County Board of Commissioners considered the preliminary plat on May 27, 2003, voted not to concur with the planning commission's recommendation to deny the plat, and instead decided to hold its own public hearing.  At the July 1 public hearing, Omann, represented by his attorney, Neil Franz, provided the first well test results indicating a 20.3 mg/l nitrate nitrogen level.  A second test resulted in a 10.3 mg/l level.  Franz also described the reverse osmosis technology available to treat the water for nitrates.

            Don Adams, a county staff person, testified that the county has a nitrate nitrogen probability map characterizing this area as having coarse soils that "are rapidly permeable and there is a high nitrate nitrogen probability associated with those soils."  Scott Longnecker from the Minnesota Department of Health testified that the state standard is 10 mg/l and that Blue Baby Syndrome has been linked to nitrate in the drinking water.  He said water treatment is an option, but treatments can mechanically fail and monitoring does not guarantee safe water.  Sheila Grow, who conducted the nitrate probability study for the county, also testified regarding health effects of nitrate. 

            Three neighbors testified against the proposed density and asked that the ten lots be reduced to five.  They were concerned that, with no public sewer or water, the septic systems in the sensitive soils would aggravate the existing nitrate issues.  Two letters from concerned neighbors regarding water quality issues and density were also read into the record.

            Omann agreed to waive the 60-day requirement for a decision and took the additional time to gather information on reverse osmosis, filter systems, and alternative plats.  Omann produced additional information on reverse osmosis, but did not address any other options.  At the October 21 board hearing, the motion to deny the plat passed, and one week later the board signed a resolution adopting findings regarding the denial.  Omann petitioned for a writ of certiorari, and the county moved to strike an exhibit from Omann's appendix.

D E C I S I O N

 

            The denial or approval of a preliminary plat application is a quasi-judicial administrative decision that we review to determine whether the decision is unreasonable, arbitrary, or capricious.  Nat'l Capital Corp. v. Village of Inver Grove Heights, 301 Minn. 335, 336-37, 222 N.W.2d 550, 551-52 (1974).  When an agency performs the quasi-judicial function of receiving and weighing evidence, making factual findings, and applying a prescribed standard to reach a conclusion, a reviewing court applies the "substantial-evidence test."  Hurrle v. County of Sherburne, 594 N.W.2d 246, 249 (Minn. App. 1999) (citations omitted).

I.

            Omann argues that the ordinance did not provide an objective standard setting a maximum allowable nitrate nitrogen level.  Additionally, he argues that the water standards are intended only to provide notice of nitrate nitrogen levels to prospective purchasers and not to mandate a certain level and, alternatively, that if there is a standard, it is unreasonably vague.

            "Regulatory standards must be sufficiently precise to ensure the application of objective standards to all similarly situated property, to adequately inform landowners of the requirements they must satisfy to gain subdivision approval, and to allow a reviewing court to evaluate noncompliance."  PTL, LLC. v. Chisago County Bd. of Comm'rs, 656 N.W.2d 567, 572 (Minn. App. 2003) (citations omitted).  When a zoning ordinance specifies the standards to which a proposed preliminary plat must conform, it is arbitrary, as a matter of law, to deny approval of a preliminary plat that complies in all respects to the zoning ordinance.  Good Value Homes, Inc. v. City of Eagan, 410 N.W.2d 345, 348 (1987).

            Stearns County Subdivision Ordinance, Number 230, provides for a two-part process for subdivision:  preliminary plat approval and final plat approval.  At the preliminary plat approval stage, "all information pertinent to the proposed development is furnished by the subdivider for review by the Department, Platting Committee, Planning Commission, and the public. The information provides the basis for approval or denial of the application."  Among other express considerations for the platting committee and planning commission when considering a preliminary plat, they "shall consider whether the plat as proposed adequately protects the health, safety and welfare of the residents of the County by providing for a healthy drinking water supply."

            The ordinance also states that the platting committee and planning commission "shall evaluate and review the preliminary plat to assure that the plat conforms to the plat design standards."  One of those "plat design standards," section 8.7, is entitled "water supply standards" and contains five conditions:  (1) "[e]ach lot shall be provided with a supply of potable water by an individual well, central water system or a public water supply"; (2) at least one test well per ten lots shall be installed "precedent to final plat approval" and a nitrate nitrogen test will be completed for each test well; (3) "[a] nitrate nitrogen intervention level of five (5) milligrams per liter (mg/l) or greater shall be considered as an unsuitable water supply"; (4) "[a] certificate identifying the nitrate nitrogen level shall be recorded with the final plat"; and (5) any requirement of section 8.7 may be waived if the subdivider agrees "no drinking water wells will be installed or used on the property being subdivided." 

            Here,            the planning commission found that all environmental problems were resolved for the Pine Point Court plat "except the high nitrate levels."  The county board found that the well water samples taken from two wells on the proposed plat contained 10.3 and 20.10 mg/l nitrate nitrogen.  The board also found that testimony existed linking nitrate nitrogen ingestion and health related conditions.

            Plain Language

            Omann argues that the plain language of the ordinance allows for any level of nitrate nitrogen in the test wells and simply requires notice to purchasers of the existing level.  For several reasons, the subdivision ordinance does not support his position.  First, the "general requirements" of the subdivision ordinance clearly express that a preliminary plat must conform to the plat design standards including the water supply standards.  Second, there is no ambiguity in the only numeric level set out in the standard; the level of five or greater mg/l "shall be considered . . . unsuitable."  (Emphasis added.)  

            Omann argues that the term "intervention level" in the standard "suggests that where nitrate nitrogen exceeds a concentration of five mg/l, the developer must intervene and provide treatment to produce [a] potable supply below the intervention level."  He also argues that simply recording a certificate, no matter what the nitrate nitrogen level, satisfies the ordinance.  But the standard clearly states that five mg/l is "unsuitable."   We cannot ignore the "suitability" standard and adopt a reading of the ordinance contrary to its express terms. Furthermore, nothing in the record indicates that Omann produced a well sample, treated or not, under five mg/l.

            Finally, Omann argues that the test well is not required for preliminary plat approval, but only "precedent to final plat approval."  The drafters of the ordinance did not expressly state that this means the test well is required for preliminary plat approval.  But a reading of the whole ordinance requires that interpretation.  The ordinance provides a two-step process for subdivision approval.  If the test results are required "precedent to" final plat approval, they would be required before final plat approval which is at the time of preliminary plat approval.  This is consistent with the general requirement that the preliminary plat conform to all design standards, including the water supply standards.    It is also consistent with preliminary approval being the primary research/investigatory process and final plat approval being a more "mechanical" stage of the approval process.  See Save Lantern Bay v. Cass County Planning Comm'n, 683 N.W.2d 862, 866 (Minn. App. 2004).  Further, while the subdivision ordinance makes a "verification" of the water supply an express part of the "final plat approval process," the "verification" is not identical to the "certificate" required under the water supply standard.  Therefore, although the language "precedent to final plat approval" lacks precision, it is nevertheless clear that the test well with a suitable nitrate nitrogen level is critical to preliminary plat approval.

            Past Practices

            Omann argues that the county staff indicated to him that a plat may be approved with a nitrate nitrogen level of five mg/l or higher and that the board has approved plats where such levels have been higher.  He cites no cases holding that staff comments control the interpretation of an ordinance.  He also provides no prior analogous administrative decisions to show past practices deviating from the plain language of the ordinance.  Cf. Swanson v. City of Bloomington, 421 N.W.2d 307, 314 (Minn. 1988) (indicating that subdivider was not to be compared to "any person ever requesting and receiving or being denied an application for subdivision" in city).  

            While prior board decisions approving preliminary plats with certificates showing nitrate nitrogen levels higher than five mg/l would have been persuasive, there is no evidence of such decisions in the record on appeal.  Omann attached to his appellate brief appendix a "verification" with two "certificates" that had been stamped by the county recorder's office, arguing that it is "a past Stearns County Board decision interpreting Stearns County Subdivision Ordinance Section 8.7."  The county moved to strike the exhibit, arguing it was neither presented to nor considered by the board of commissioners. 

            A reviewing court may consider cases, statutes, rules, and "publicly available articles that were not previously presented to the district court."  Fairview Hosp. v. St. Paul Fire & Marine Ins. Co., 535 N.W.2d 337, 340 n. 3 (Minn. 1995).  Although the recorded document appears to be a "publicly available" document, it does not constitute a prior administrative decision by the board of commissioners interpreting the ordinance at issue in this case.  It neither purports to be nor refers to a decision by the board.  It is also unclear whether the same subdivision ordinance was in effect at the time the document was filed.  Finally, the verification suggests that the attached certificates show two samples, one without treatment and one with treatment, which is not factually analogous to the case at bar.  Therefore, the county's motion to strike is denied, but absent context or similarity to the present case, the exhibit has no substantive value to this appeal. 

II.

            Omann argues throughout his brief that the board's real basis for denying the preliminary plat was the neighbors' and its own opposition to the proposed density of the subdivision.  The board found the subdivision complied with the standard for density, but Omann cites to various comments by neighbors and commissioners concerned with density.

            The record reflects that density was a concern during these proceedings.  A close review, however, also indicates that most of the stated concerns about density were related to its effect on water quality.  Because above-standard nitrate nitrogen levels were the focus of the proceedings and were the clearly expressed basis for denying plat approval, the board could consider the neighbors' opinions about the proposed subdivision.  See Swanson, 421 N.W.2d at 313 (stating that neighborhood feeling may not constitute sole basis but may be considered). 

III.

            Omann argues that the board's findings were not contemporaneous with its decision.  While contemporaneous findings are required, findings may be issued after the decision is made as long as they are based on the record and are not simply a post hoc justification for the decision already made.  Hurrle, 594 N.W.2d at 250.  Here, there was a full transcript of the relevant hearings with testimony by experts and evidence of the high probability of nitrates in the area and on the proposed site in particular.  The findings are tied to this evidence and are set out in the resolution signed by the board less than one week after the last of two public hearings.  There is no indication that the findings were based on anything other than the evidence before the county board.  Therefore, they satisfy the requirement that they be contemporaneous.

            Affirmed; motion denied.