This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
A07-0381
Minnewawa Sportsman’s Club,
Relator,
vs.
County of Aitkin, et al.,
Respondents.
Filed February 5, 2008
Affirmed in part, reversed in part, and remanded
Ross, Judge
Aitkin County Planning Commission
File No. CUP #34906C
Andrew M. Shaw, Shaw & Shaw, P.A., 3 First Street Northeast, P.O. Box 365, Deer
River, MN 56636 (for relator)
Jay T. Squires, Julia H. Halbach, Ratwik, Roszak & Maloney, P.A. 300 U.S. Trust
Building, 730 Second Avenue South, Minneapolis, MN 55402 (for respondents)
Considered and decided by Dietzen, Presiding Judge; Lansing, Judge; and Ross,
Judge.
UNPUBLISHED OPINION
ROSS, Judge
This appeal arises from Minnewawa Sportsman’s Club’s request for a conditional
use permit to expand its operation by adding an archery range and a new road to its
firearms-range operation in Aitkin County. The club operates under a 1997 conditional
use permit, which the county’s planning commission issued with no expressly stated
conditions.
The county granted the club’s application for an amendment to the
conditional use permit, but it added 17 conditions that related mostly to the firearms use
rather than exclusively to the archery range and road uses. Because we agree with
Minnewawa that its limited conditional-use-permit application does not open the door for
the county to add conditions to the club’s existing permit for use as a firearms range, we
reverse in part. But because the permit imposed several reasonable conditions related to
the addition of an archery range and a new road, we affirm in part.
FACTS
Minnewawa Sportsman’s Club applied for a conditional use permit (CUP) in 1997
to operate a trap-shooting range, rifle range, archery range, gun-safety facility, restaurant,
and bait shop on roughly 20 acres of land in Aitkin County zoned as open. When the
Aitkin County Planning Commission met to discuss Minnewawa’s application on
October 20, 1997, the participants discussed potential problems with noise and traffic, but
the minutes reflect no attempt to impose operational conditions on the club. Minnewawa
representative Lyle Ward told the commission that ―the majority‖ of shooting would
occur from approximately 5:00 p.m. to 8 or 8:30 p.m. ―one day per week, and maybe
Saturday.‖ When one attendee asked whether the permit would include any conditions,
―the Chair[person] stated he did not see a need for any conditions.‖ The balance of the
informal discussion included only a commissioner asking ―about toilet facilities‖ and
Ward’s answer that ―they had portables,‖ which immediately preceded unanimous
approval of Minnewawa’s application with no further mention of conditions.
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The
commission granted the CUP without any express conditions, leaving blank the section of
the executed CUP form that is reserved for the listing of conditions.
The record suggests that neither the county nor Minnewawa has acted with any
certainty about whether the CUP issued in 1997 included implied conditions.
For
example, although the county now takes the position that the original CUP included
restrictions on operational hours, a county inspector responded to neighbors’ complaints
about late-night noise in 2003 by observing that ―[t]he Planning Commission attached no
conditions to the CUP approval. . . . [T]here was no time limit on operations per Planning
Commission.‖ The inspector noted similarly in 2004 that ―[b]ecause this is an approved
CUP . . . without conditions, there is very little control over issues that the state does not
regulate.‖ And although Minnewawa now takes the position that the 1997 CUP imposed
no conditions as to operational hours, the minutes of the planning commission’s January
2007 meeting reflect that Minnewawa representative Gary Vorlicky indicated that the
club ―would like to obtain more days‖ on which members would be allowed to shoot.
Minnewawa applied to amend the CUP in June 2006. The CUP-amendment
record adds little clarity to the confusion over whether the original CUP was perceived as
restricting operational hours. On its face, Minnewawa’s CUP application requests only to
amend the existing CUP to include nine new acres for use ―for [an] archery range and a
new [service] road.‖ The planning commission met on July 17, 2006, to review this
request. At that meeting, Ronald Clasen, a Minnewawa representative, argued that the
1997 CUP already allows for daily shooting. Arguably inconsistent with this position,
Minnewawa also submitted a supplemental document stating, ―We would like to shoot
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trap Tuesday, Thursday and 6 Saturdays a year. . . . Please keep this in mind when you
amend our permit.‖ One commissioner opined that the permit had been granted based on
Lyle Ward’s statement at the 1997 commission meeting that the club would allow
shooting only one weeknight and on Saturdays. But the commission made no finding
that relates to the commissioner’s stated opinion. It tabled Minnewawa’s application so
that it might consider potential conditions of the CUP, and it indicated that it would
reconsider the application at an August 2006 meeting.
Minnewawa withdrew its
amendment request, however, before the commission took any action on the application
at the August meeting.
On December 27, 2006, Minnewawa again submitted a request to amend the 1997
CUP, again specifically seeking to include the additional acreage for an archery range
and a new road. But for reasons not indicated in the record, after Vorlicky signed his
application on Minnewawa’s behalf, someone other than Vorlicky at some point altered
Minnewawa’s application documents to add language that purported to request
―amending shooting times‖ to ―rifle—3 days, trap—3 days and . . . Saturdays.‖
Minnewawa insists that these alterations were made by the county without Minnewawa’s
authorization. Although the record does not establish the truth of this assertion, the
county does not contest it. The county asserts that it altered the documents to make the
application accurate and complete. But on appeal, Minnewawa objects, contending that
the county altered the application to attempt to open the original 1997 CUP to add
conditions to limit shooting hours at the club.
On January 2, 2006, the planning
commission issued a notice of review, indicating that the commission would meet on
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January 22, 2007, to discuss the amendment request, which it summarized as a request to
expand the acreage of the club and to expand the hours of operation.
Minnewawa representatives Ron Clasen and Gary Vorlicky argued to the
commission that Minnewawa’s 1997 representative had stated only that the ―majority‖ of
the operation would be one day a week, but that the permit did not limit the club’s hours
of operation. In keeping with the confusion, Minnewawa’s Clasen had already written a
letter in January 2007 in support of the club’s requested amendment, urging the
commission to ―give Minnewawa the hours of operation they are asking for.‖ Despite his
assertion that Minnewawa was not restricted in its hours of operation, Vorlicky agreed to
keep shooting hours limited to Tuesdays and Saturdays, if the club would be allowed to
increase shooting hours once it made sound-abatement improvements.
The
commissioners discussed the amendment request subject to 17 potential conditions,
including operational conditions related to the shooting range. Vorlicky protested that
the county was trying to change the 1997 permit in a way that would limit the operational
rights that Minnewawa already possessed by ―taking away what they have already.‖
The commission approved the CUP with the 17 conditions.
Many of the
conditions specifically related to Minnewawa’s firearms operation, such as the following:
the club must follow NRA rules and guidelines; the rifle range must have a culvert or
other physical barrier before Minnewawa could extend its hours of firearms operation;
the rifle range must have a sound barrier; the days of operation for the trap range would
be limited to two weeknights and six Saturdays a year; the rifle and pistol range could
operate only on Tuesdays and Saturdays; the operation of these ranges would be limited
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to specific start and stop times on specific days; and the firearms range must be closed
during deer-hunting season. Vorlicky objected, refusing to sign the Notice of Decision.
Minnewawa contests the county’s decision in this certiorari appeal.
DECISION
Minnewawa challenges the county’s CUP decision. The county has discretion to
approve or deny a conditional use permit application. Zylka v. City of Crystal, 283 Minn.
192, 195, 167 N.W.2d 45, 48–49 (1969). We will uphold a county’s decision to approve
or deny a CUP application unless we determine that the county’s decision was arbitrary,
capricious, or unreasonable. Schwardt v. County of Watonwan, 656 N.W.2d 383, 386
(Minn. 2003).
The parties fire several shots at the wrong target, focusing on the scope of the CUP
issued in 1997. Despite its vacillation before this appeal, Minnewawa insists now that the
1997 CUP imposed no operational restrictions. And despite its own vacillation on this
point throughout the life of the CUP when responding to noise complaints, the county
now insists that the 1997 CUP included an implied condition limiting operational hours
based on the statements made by Minnewawa’s representative during the 1997 CUP
approval process.
The county relies on an unpublished opinion of this court for the proposition that a
landowner’s representations made during a CUP-application process are binding and
become part of the CUP even when the executed CUP does not include the conditions
expressly. See Edling v. Isanti County, No. A05-1946 2006, WL 1806397 (Minn. App.
July 3, 2006) (upholding county’s decision to revoke a CUP because Edling exceeded the
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limited scope of the CUP as construed to include his representations made during the
application process). The county’s reliance on that unpublished opinion has apparent
problems.
First, unless the landowner’s purportedly binding representations are
themselves recorded with the CUP, interested parties or future purchasers may have no
notice of use restrictions on the property. See Minn. Stat. § 394.301, subd. 4 (2006)
(requiring that a certified copy of any conditional use permit be recorded with the county
recorder or registrar of titles). There is no indication in the record that Ward’s statements
during the 1997 hearing were recorded as part of the CUP. This is critical since a CUP
runs with the land and continues to encumber the property even after it is conveyed to
subsequent owners. See Northpointe Plaza v. City of Rochester, 465 N.W.2d 686, 689
(Minn. 1991) (noting that the property interest in a CUP runs with the land). Second, this
case also presents a practical problem concerning the allegedly binding representation—
imprecision. The minutes of the 1997 process indicate that Minnewawa’s representative
Ward stated only that ―the majority [o]f the shooting‖ would occur during expressly
stated times and days. Third, the chairperson specifically said that he ―did not see a need
for any conditions‖ on the CUP. Consistent with that discussion, the county’s chairman
signed the CUP indicating the imposition of no conditions.
But we do not decide the legal question of whether Ward’s oral representations at
the 1997 hearing can or do constitute conditions incorporated into the 1997 CUP because
construction of the 1997 CUP was not raised to or anywhere decided by the commission
on this record, and the question is not properly before this court. See Honn v. City of
Coon Rapids, 313 N.W.2d 409, 416–17 (Minn. 1981) (holding that when reviewing a
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rezoning decision, new or additional evidence received at trial will be included in the
record only if that evidence relates to the issues raised and considered by the municipal
body); In re Block, 727 N.W.2d 166, 175 (Minn. App. 2007) (declining to address an
issue related to the grant of a CUP raised for the first time on appeal). We therefore do
not determine whether the 1997 CUP includes any operational conditions. We resolve
only whether the county’s decision to grant the CUP in 2007 with its 17 conditions was
arbitrary or unreasonable based on Minnewawa’s application for a CUP amendment.
We believe the 2007 CUP improperly exceeded the scope of Minnewawa’s limited
application for use of nine new acres specifically for an archery range and a service road.
Minnewawa’s signed and submitted amendment application requested consideration of
those uses only and for that acreage only. The county added language to the CUP
amendment application after the applicant signed it, substantially altering the request to
include the hours of operation of the firearms ranges and regarding property beyond the
nine added acres identified in the application.
Minnewawa’s contention that the
commission was attempting to use the 2007 process to impose conditions that it thought
may have been imprudently absent from the existing CUP has support in the record.
According to the minutes of the January 22, 2007, commission meeting to consider
Minnewawa’s application, ―The chair[person] stated they want to clean this CUP up.‖
At oral argument, the parties disagreed as to whether Minnewawa submitted a
supplement to their December 2006 application requesting to shoot trap three days a
week. Minnewawa did agree that the undated supplement was submitted in June 2006,
but it disputed that it was submitted again in December 2006 with its second request, and
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the commission made no findings concerning whether that supplement was submitted for
consideration with the December application.
We therefore do not consider the
supplement here.
It is true that, despite the limited scope of Minnewawa’s application, the
commission’s notice about the requested amendment referred more broadly to the club’s
hours of operation. And it is true that Minnewawa’s representatives made statements in
writing and at the hearing to indicate they wanted to expand the allowed hours of
operation for the firearms ranges. But the notice does not itself amend the application
and the postapplication statements by the club’s representatives also do not amend the
club’s specific application. The representatives also made contrary statements indicating
that they understood the original CUP as imposing no operational limits, objecting to any
new limits on the firearms ranges, and rejecting the CUP as an improper alteration of
their existing rights. We will consider the signed application itself as presenting the issue
for consideration by the commission without regard to the conflicting and ambiguous
statements made later.
The county had no procedural basis to impose new conditions restricting the hours
of operation of the shooting ranges. We note that there are ways that the county might
have imposed restrictions on the operations at Minnewawa’s firearms ranges, none of
which occurred here. For example, if Minnewawa applied for a CUP regarding firearms
use on the property covered by the 1997 CUP, the commission could have acted on that
application. If the county had established both the existence of a condition and that
Minnewawa had violated the condition restricting operation of the firearms ranges, it
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could have taken remedial action.
See Minn. Stat. § 394.301, subd. 3 (2006) (―A
conditional use permit shall remain in effect for so long as the conditions agreed upon are
observed.‖); State ex rel. Neighbors Organized in Support of the Env’t v. Dotty, 396
N.W.2d 55, 59 (Minn. App. 1986) (noting that ―a conditional use permit continues until
its provisions are violated‖). The planning commission might have sought to amend its
current zoning ordinance, which provides that a shooting range is allowed by CUP. See
Minn. Stat. § 394.301, subd. 3 (indicating that the statutory restriction on a local
government’s authority to invalidate a CUP is not intended to prevent zoning changes
that may affect a CUP’s status); Aitkin County, Minn., Zoning Ordinance, app. C (Jan.
10, 1995). But because the matter of operational hours and uses on the property beyond
the nine new acres was not before the commission in January 2007, we conclude the
county acted arbitrarily when it imposed new conditions on firearms use on
Minnewawa’s original property.
The county argues that it has the inherent authority to reconsider the 1997 CUP,
citing In Re Block, 727 N.W.2d 166. A CUP is not a personal license, but a property
right that attaches to and runs with the land. Dege v. City of Maplewood, 416 N.W.2d
854, 855-56 (Minn. App. 1987). If the commission has inherent authority to ―clean up‖
imprudently issued CUPs, then the caselaw that establishes that a CUP may continue
perpetually if its conditions are not violated would be meaningless. And this court has
refused to remand a case for findings when doing so would allow the county to ―merely
rationalize‖ its previous decision to deny a CUP application. City of Barnum v. County of
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Carlton, 386 N.W.2d 770, 776 (Minn. App. 1986), aff’d on reh’g, 394 N.W.2d 246
(Minn. App. 1986), review denied (Minn. Dec. 17, 1986).
We add that the county’s reliance on Block is misplaced for two reasons. First,
Block is factually dissimilar. Block involved a CUP to operate a dog-breeding facility, a
rather startling condition of which was that the dogs would be surgically ―debarked.‖
Block, 727 N.W.2d at 171. After the CUP was issued, the county received considerable
opposition to the arguably inhumane condition included in the CUP. Id. at 172-73. Upon
informal reconsideration, the county administrator and county attorney altered the
condition that all dogs be debarked to the more humane condition that all dogs wear
shock collars to discourage barking. Id. at 173. This court recognized the ―inherent
authority of an agency to reconsider a decision.‖ Id. at 182. And even then, rather than
to affirm or reverse on the narrow contention that the county had improperly amended the
CUP, we remanded for further proceedings and more evidence to allow the board to
formally reconsider its debarking decision. Id. at 182. Because the situation in Block was
the decisionmaker’s reconsideration to relax a condition of a CUP soon after its
imposition, not reconsideration to impose new conditions to a CUP long after issuing it,
Block does not bear on the question before us. Second, Block is legally distinguished.
Block relies on In re N. Metro Harness for the underlying proposition that inherent
authority supports reconsideration. But In re N. Metro Harness limits that inherent
authority to the time before the appeal period runs on the initial decision. 711 N.W.2d
129, 136–37 (Minn. App. 2006), review denied (Minn. June 20, 2006). Block provides
no support for the premise that the Aitkin County Planning Commission could simply
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―reconsider‖ Minnewawa’s 1997 CUP to add new conditions in 2007 without a proven
violation or a specific amendment request that opens the permit to greater restrictions.
We are mindful that the Shooting Range Protection Act, codified at Chapter 87A
of Minnesota statutes, may impose limitations in similar settings.
See Minn. Stat.
§ 87A.03, subd. 1(5) (2005) (prohibiting qualifying shooting ranges from being restricted
from conducting shooting activities daily between 7:00 a.m. and 10:00 p.m., and allowing
local government with zoning jurisdiction to extend the hours of operation by conditional
use permit); Minn. Stat. § 87A.07, subd. 1 (2005) (prohibiting closure of a firearms range
unless the range or activity is found to be an immediate safety hazard); Minn. Stat.
§ 87A.08, subd. 1 (2005) (providing that the chapter shall not be construed to supersede
more restrictive regulation of a range’s days and hours of operation imposed by
ordinances and permits in effect on May 28, 2005). But the parties do not cite or
otherwise incorporate the Act into their arguments, and we offer no opinion regarding its
applicability.
Minnewawa argues that this court should remand to the planning commission to
consider its specific request to add nine acres to the 1997 permit for an archery range and
a new road. A remand for that purpose is unnecessary. In granting the CUP, the
commission already addressed Minnewawa’s amendment request to add nine acres,
imposing conditions for the requested archery use. Because the county’s decision to
grant the CUP relating to the archery range on the nine acres with specific conditions
regarding that use is reasonable, we affirm the county’s decision to grant the CUP with
the stated conditions regarding the archery range.
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We therefore affirm the 2007 CUP with its conditions to the extent that it relates to
the nine acres, the archery range, and the service road. To the extent the 2007 CUP and
conditions relate to the firearms ranges, we reverse. We remand with instructions to the
planning commission and county to execute an amended CUP limited to imposing
conditions related to the uses and property indicated in Minnewawa’s December 2006
CUP application, before its alteration. We offer no opinion concerning whether or to
what extent the original CUP incorporates Ward’s 1997 comments or otherwise restricts
firearms operations.
Affirmed in part, reversed in part, and remanded.
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