In the Matter of the Cities of Annandale and Maple Lake's Petition for a Conditional Use Permit for a Sewage Treatment Plant on Property located in Albion Township, Wright County.

In the Matter of the Cities of Annandale and Maple Lake's Petition for a Conditional Use Permit for a Sewage Treatment Plant on Property located in Albion Township, Wright County. A04-520, A04-531, Court of Appeals Unpublished, January 4, 2005.

This opinion will be unpublished and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

A04-520

A04-531

 

 

In the Matter of the Cities of Annandale and

Maple Lake's Petition for a Conditional Use

Permit for a Sewage Treatment Plant on

Property located in Albion Township, Wright County.

 

 

Filed January 4, 2005

Affirmed; motion granted in part

Parker, Judge*

 

Wright County Planning Commission

 

 

Peder A. Larson, Peder Larson & Associates, PLC, 5200 Willson Road, Suite 315, Edina, MN 55424 (for relators Barbara Aurentz, et al.)

 

Edward J. Laubach, Jr., Christoper W. Harmoning, Gray, Plant, Mooty, Mooty & Bennett, P.A., 1010 West St. Germain, Suite 600, St. Cloud, MN 56301 (for respondents City of Annandale and City of Maple Lake)

 

Jay T. Squires, Isaac Kaufman, Ratwik, Roszak & Maloney, P.A., 300 U.S. Trust Building, 730 Second Avenue South, Minneapolis, MN 55402 (for respondents Wright County and Wright County Planning Commission)

 

            Considered and decided by Harten, Presiding Judge; Schumacher, Judge; and Parker, Judge.

U N P U B L I S H E D   O P I N I O N

PARKER, Judge

In these combined appeals by writ of certiorari, relators Barbara Aurentz, et al. (neighbors) challenge the Wright County Planning Commission's (commission) decision to issue a conditional use permit (CUP) for a wastewater treatment facility (WWTF).  Relators City of Annandale and City of Maple Lake (cities), the CUP applicants, challenge the commission's placement of a condition on the CUP.  We affirm.

D E C I S I O N

The CUP application in this case proposed a wastewater treatment facility (WWTF) for the cities of Annandale and Maple Lake to be located on a site in Wright County several miles to the south and east of the two cities.  The proposed building site is an agricultural zone in the county land-use plan.  Sewage treatment plants are a conditional use in the agricultural zone, therefore a CUP was required.  The cities' proposed plan for the facility included discharging the treated wastewater directly at the site of the plant, after which it would flow through a creek, a stream, and several ditches in the downstream watershed before entering the north fork of the Crow River.

The proposal was considered at several of the commission's public hearings.  At the first meeting, approximately 12 neighboring landowners made comments on the proposal.  There were several comments about potential property devaluation and general odor and aesthetic concerns.  Other commenting neighbors focused on downstream flooding and other potential negative effects from the volume of wastewater that would be discharged at the site.  Later, after a site visit, some of the commissioners were also concerned about potential flooding, drainage, and water stagnation problems from the discharge of treated effluent.  The commission considered the proposal at a total of four meetings.  At the January 24, 2004, meeting, the commission voted to approve the CUP with the condition that the cities pump the treated effluent directly into the Crow River, rather than discharge it into the creek and downstream watershed.[1]

We first review the neighbors' challenge to the issuance of the CUP.  Decisions of a county to grant or deny a CUP are quasi-judicial and are reviewed by writ of certiorari. Interstate Power Co., Inc. v. Nobles County Bd. of Comm'rs, 617 N.W.2d 566, 574 (Minn. 2000).  Our review of the commission's decision is "deferential . . . as counties have wide latitude in making decisions about [conditional] use permits."  Schwardt v. County of Watonwan, 656 N.W.2d 383, 386 (Minn. 2003).  A party challenging the grant of a CUP must meet a higher burden of proof than a landowner challenging the denial of a CUP.  Sunrise Lake Ass'n, Inc. v. Chisago County Bd. of Comm'rs, 633 N.W.2d 59, 61 (Minn. App. 2001) (citing Bd. of Supervisors v. Carver County Bd. of Comm'rs, 302 Minn. 493, 499, 225 N.W.2d 815, 819 (1975)).  To show that the commission's decision was unreasonable, a party challenging the grant of a CUP must establish that the proposal did not meet one of the standards set out in the county zoning ordinance and that the grant of the CUP was an abuse of discretion.  Schwardt, 656 N.W.2d at 387.

We will uphold the commission's decision unless it was unreasonable, arbitrary, or capricious.  Trisko v. City of Waite Park, 566 N.W.2d 349, 352 (Minn. App. 1997), review denied (Minn. Sept. 25, 1997).  "Reasonableness is measured by examining whether the standards in the ordinance have been satisfied."  City of Barnum v. Carlton County, 386 N.W.2d 770, 775 (Minn. App. 1986) (citing White Bear Docking & Storage, Inc. v. City of White Bear Lake, 324 N.W.2d 174, 176 (Minn. 1982)).  The law allowed the commission to approve the cities' conditional use permit provided the cities' proposal satisfied the standards set out in the county zoning ordinance.  See Schwardt, 656 N.W.2d at 387 (citing Minn. Stat. § 394.301, subd. 1 (2002)).[2]

The neighbors assert that the commission failed to make adequate findings that the proposal met certain criteria described in Wright County Zoning Ordinance (WCZO) § 505.1 and that the findings were unsupported by the evidence, making them unreasonable and arbitrary.  We disagree and uphold the issuance of the CUP.

The neighbors object in part to the form and content of the findings, stating that the findings are not a sufficient legal basis for the commission's decision.  First, we note that the commission's findings specifically addressed all of the factors that the WCZO requires to be considered, and stated affirmatively the commission's conclusion that the project, with the pipe condition imposed, would not violate any of the applicable criteria.  Second, the commission made additional specific findings that addressed various items of evidence presented to the board during its consideration of the proposal and presented more specifically the commission's reasons for finding that the criteria in the ordinance were met.  This constitutes a sufficient legal basis for the decision because it demonstrates that the commission considered and applied all of the applicable and relevant criteria in the WCZO in making its decision. 

The fact that the findings mirror the language of the ordinance is not fatal to the commission's decision.  See Schwardt, 656 N.W.2d at 389 (stating that a county board's use of a checklist was "a sufficient expression of the board's conclusion that the conditions for approval have been met," and noting that a board or commission "should not have to find negatively that alleged failures to meet [ordinance] requirements are without merit.").

We read the neighbors' principal assertion, that the commission must make "affirmative findings," as contending that the project proponents are required to prove, by a certain standard of proof, that their proposal met each of the criteria in the ordinance.  We do not believe the language of the ordinance or our caselaw supports this contention.  Rather, several of our previous cases establish that "where a [conditional use] permit is sought, the burden is on the person opposed to the grant to establish facts compelling its denial."  Luger v. City of Burnsville, 295 N.W.2d 609, 611 (Minn. 1980) (citing Minnetonka Congregation of Jehovah's Witnesses, Inc. v. Svee, 303 Minn. 79, 226 N.W.2d 306 (1975)).  And the language of the ordinance itself does not support a requirement that the project proponents present expert evidence or clear and convincing evidence that each of the listed criteria will be satisfied.  Rather, the ordinance states that the commission shall consider each of the criteria in its decision-making process.  We find that the commission complied with this requirement because our independent review of the record demonstrates that the commission considered all of the relevant criteria at their meetings.  Nor does the language of the ordinance itself say anything about the parties' relative burdens of proof or that the proponent of the CUP application is required to present expert analysis on each criterion.[3]  See also SuperAmerica Group v. City of Little Canada, 539 N.W.2d 264, 266 (Minn. App. 1995) (stating that a zoning ordinance should be construed according to the plain and ordinary meaning of its terms and in favor of the property owner), review denied (Minn. Jan. 5, 1996).

We also find that there was a sufficient factual basis for the CUP issuance.  The Minnesota Supreme Court has recently suggested that it is possible there could be a case where "the evidence [submitted to a county board] is. . . so significant and one-sided as to render the approval arbitrary."  Schwardt, 656 N.W.2d at 389.  The court also suggested that such instances are rare and of a type where the  "evidence [submitted in opposition to a CUP] so conclusively establishe[s] that [grant of the CUP] would [violate an ordinance standard] that the approval amount[s] to an abuse of discretion."  Id. at 388 (finding that a county board was not required to deny a CUP application for a feedlot and did not abuse its discretion even though individuals opposing the project submitted letters from three doctors about the individuals' health symptoms related to exposure to hogs and "general reports" about ill health effects from living near feedlots).

We do not believe this is a case of the type described in Schwardt.  The record reflects that the commission received and considered all relevant evidence in opposition to and in support of the CUP; evidence relating to noise, odor, visual impact, property values, and downstream impacts, and did not improperly disregard "overwhelming" evidence that the CUP would have negative effects in violation of the ordinance criteria. 

The Minnesota Supreme Court has repeatedly stated:

"[W]ith respect to the decisions of municipal and other governmental bodies having the duty of making decisions involving judgment and discretion that it is not the province of the court to substitute its judgment for that of the body making such a decision, but merely to determine whether that body was within its jurisdiction, was not mistaken as to the applicable law, and did not act arbitrarily, oppressively, or unreasonably, and to determine whether the evidence could reasonably support or justify the determination."

 

Buss v. Johnson, 624 N.W.2d 781, 785 (Minn. App. 2001) (quoting Village of Edina v. Joseph, 264 Minn. 84, 93, 119 N.W.2d 809, 815 (1962)); see also Billy Graham Evangelistic Ass'n v. City of Minneapolis, 667 N.W.2d 117, 124 (Minn. 2003) ("[L]ocal decisionmakers have discretion in weighing evidence."); Barton Contracting Co. v. City of Afton, 268 N.W.2d 712, 718 (Minn. 1978) (when assessing conflicting evidence in quasi-judicial cases, an appellate court does not weigh the evidence, but reviews the record "to determine whether there was legal evidence to support the zoning authority's decision.").

Our standard of review does not permit us to substitute our judgment for that of the commission by judging that a particular item of evidence was more credible than another.  We believe the commission was entitled to credit the evidence presented by the project proponents and the MPCA findings and was not required to rely conclusively on any of the contrary information presented by the neighbors or other opponents to the project.

The neighbors specifically object to the findings that the proposal will not be injurious to the use and enjoyment of other property in the vicinity, will not substantially diminish property values, and will not impede the orderly development and improvement of surrounding properties.  But the record reveals a sufficient factual basis for the commission's findings.  We do not believe, as the neighbors assert, that the commission's partial reliance on the MPCA's findings from the environmental assessment worksheet (EAW) process was impermissible.  The comments and responses in the EAW were relevant to several of the ordinance criteria, and the neighbors have not cited any authority to support their argument that the EAW findings were improperly considered.  We believe the MPCA findings present relevant information regarding the lack of odor and noise problems presented by other similar facilities, and the commission was entitled to rely on that information.

We particularly note that the record reflects that no other information was presented to the commissioners that even remotely or conclusively established that such facilities create undue levels of noise or odor.  Additionally, the record reflects that the commissioners heard and considered information regarding the visual aspects of the proposal, including consideration of photo slides showing the typical appearance of such plants.  The transcript of the commission hearings establishes that the commissioners were indeed properly concerned with and considered the visual impact of the facility on neighboring properties, and imposed berm and landscaping requirements on the permit in order to address these issues.  On this record, we cannot say that the commission's findings on impact of the facility on other properties nearby were unreasonable.

The neighbors also challenge the commission's findings on the proposal's impact on property values.  The commission found that there was "no credible evidence in the record" that the proposal would decrease property values.  The record reflects that the commission heard testimony from neighbors that included general assertions that their property would be devalued as a result of the proposal.  The commission also received into the record a letter from a realty company to one of the neighboring landowners that stated property values would decrease if a sewage treatment plant were built.  The cities' engineer also made a general assertion at one of the meetings that such facilities do not impact property values.  We note that none of the opinions proffered were based on information specific to the area or to the properties in general, or concrete data showing an actual decline in property values around comparable plants.  More importantly, the neighbors have not cited any legal authority to support their assertion that the cities were required to furnish expert testimony on property values.

Finally, both the cities and neighbors challenged the condition that the cities develop a means of pumping the treated effluent through a pipe leading directly to the Crow River.  The cities assert that there was no legitimate basis for the commission's decision to impose the pipe condition and that the condition was merely a response to general citizen opposition.  The cities also argue that the fact that the MPCA and DNR did not require such a piping condition establishes the unreasonableness of the commission's decision.  The cities also assert that the condition would be so costly that its imposition is tantamount to a denial of the permit.

A zoning authority has discretion to deny an application for a CUP only for reasons relating to the public's health, safety, or general welfare or because the proposed development is incompatible with a county's land-use plan.  SuperAmerica, 539 N.W.2d at 267.  When a municipal body states its reasons for denying a permit, we review the legal sufficiency of the reasons given and the factual basis for those reasons.  Scott County Lumber Co. v. City of Shakopee, 417 N.W.2d 721, 727 (Minn. App. 1988), review denied (Minn. Mar. 23, 1988).  The county zoning ordinance grants the commission the power to place conditions on the permit that the commission deems necessary to protect the public health, safety, or morals.  See WCZO § 505.2.  This language is consistent with state statutory law, which provides that a county planning commission, "[i]n connection with ordering the issuance of a conditional use permit. . . may impose such additional restrictions or conditions as it deems necessary to protect the public interest . . . ."  Minn. Stat. § 394.301, subd. 2 (2002).

The commission imposed the condition that the cities pump the treated effluent through an engineered pipe directly to the north fork of the Crow River.  The commission's findings clearly state that the commission believed this condition was necessary because "the increased flow into the watershed may significantly impact area residents and farmers," because the cities had "not adequately addressed the potential problems with winter flows in a nearly stagnant system," and because the addition of 1.18 million gallons per day (the capacity daily discharge for the WWTF) will "exacerbate flooding downstream," and the applicants had not "adequately addressed the issues of ice blockages or dams forming during winter months."  We believe the record evidence more than adequately supports these conclusions and that the commission had the power to impose the condition because it was founded in the commission's concern for the public health, safety, or morals, or public interest, as authorized by the ordinance and statutory language.

The cities assert that the condition was merely the result of the neighbors' unfounded fears and that the cities' expert study established that there would be no problems from the additional volume of water discharged into the watershed.  The cities correctly note that generalized or nonspecific citizen opposition can be an insufficient basis for a particular zoning or land-use decision.  See Scott County Lumber, 417 N.W.2d at 728 (finding city could not prefer landowners' opinions, without "something more concrete," over experts' conclusions); Chanhassen Estates Residents Ass'n v. City of Chanhassen, 342 N.W.2d 335, 340 (Minn. 1984) (holding that a permit denial must be based on something more concrete than "non-specific" testimony and neighborhood opposition.)  But we believe this case is distinguishable for the following reasons.

The facts of this case are similar to those in SuperAmerica.  In that case, we determined that expert testimony put forth by the project proponent, which stated there would be no increase in traffic problems at the site, did not mandate issuance of a permit for a gas station convenience store when the deciding body relied on the experts' acknowledgement of an existing traffic congestion problem and "neighbors' concrete, current observations" about the "existing, daily traffic problems" at the site.  SuperAmerica, 539 N.W.2d at 268.  Here, the record reflects that many of the neighbors' comments were based on their personal experience with previous flooding in the area and, particularly, problems with the amount of water flow and drainage problems in the channel the cities proposed to use for discharging the treated wastewater.  This type of concrete, specific observation of flooding and drainage problems is similar to the information we found reliable in SuperAmerica.  See also Corwine v. Crow Wing County, 309 Minn. 345, 361, 244 N.W.2d 482, 491 (1976) (stating that status as an area resident is sufficient "to establish competency and personal knowledge" of relevant, alleged facts), overruled in part on other grounds by Northwestern College v. City of Arden Hills, 281 N.W.2d 865 (Minn. 1979).

We also note several items or pieces of information presented to the commission that establish a rational factual basis for the commission's concerns about problems created by the water discharge and the piping condition, in addition to the neighbors' testimony about flooding and water backup in the downstream channels.  These items include a letter from Steven Klein, professional engineer with Barr Engineering, which reviewed the downstream flow study prepared  by the cities' engineering firm and noted that several important issues were left unaddressed by the cities' downstream flow study, particularly issues related to erosion, sediment accumulation downstream, blockage and flooding in the drainageway due to ice formation in the winter months, and impact on the neighboring lands due to a constant stream of water in the drainageway.   Second, the county notes a memorandum from its zoning engineer that observed that the area in question was already subject to flooding and that any additional quantity of water or discharge introduced into the area would not be "desirable."  We believe this evidence, combined with the neighbors' testimony, adequately supports the commission's determination that discharging the treated water at the site of the facility would negatively impact the downstream channels such that a direct pipe to the river was necessary.

The cities assert that the imposition of the condition was especially unnecessary and arbitrary in light of the additional project cost that would be imposed by the piping requirement.  But we note that the cities have not cited any authority that holds that project cost is a decisive factor or even any factor a commission must consider when deciding on conditional use permit applications and imposing conditions that the commission finds "necessary to protect the public interest."

Finally, we address the parties' motions to correct and supplement the record.  The neighbors filed a motion to supplement the record with a letter dated January 27, 2004, from the cities' legal counsel.  And the cities assert that several items transmitted from the county planning agency to this court are not part of the record, particularly two letters from the neighbors' attorney addressing the legality of discharging water from the plant into an alleged "private" ditch, and letters and photos the neighbors submitted to refute the cities' assertion that certain drainage routes for the plant were not "heavily vegetated."  We conclude that the items at 50, 53, 54, and 55 in the tabbed record transmittal are part of the record because the county presented sufficient evidence that the commissioners received these materials and considered them in deciding the CUP issuance.  We deny the cities' motion to strike those items from the record.  The documents at 51 and 52 are not part of the record, however, and we grant the cities' motion with regard to those items.  Furthermore, we deny the neighbors' motion to supplement the record with a letter dated January 27, 2004, because the letter was in the nature of a settlement offer.

The cities also objected briefly to the commission's consideration of the letter from Klein Engineering that was submitted by counsel for the neighbors after the "close" of the public hearing on September 25, 2003.  Although at that meeting the commissioners passed a motion closing the public hearing, the neighbors and counsel for the neighbors submitted additional written materials after the meeting.  The commission subsequently voted to include the comments in the record and allowed the cities another opportunity to respond to the Klein Engineering report submitted by the neighbors' counsel after the close of the public hearing.  The county zoning administrator also reiterated that the record was closed.

We do not believe acceptance of the Klein letter was error in a proceeding of this sort.  Municipal land-use proceedings "do not generally invoke ‘the full panoply of procedures required in regular judicial proceedings[;]' the applicable rights of due process are ‘reasonable notice of hearing and a reasonable opportunity to be heard.'"  Gun Lake Ass'n v. County of Aitkin, 612 N.W.2d 177, 183 (Minn. App. 2000) (quoting Barton Contracting Co., Inc. v. City of Afton, 268 N.W.2d 712, 716 (Minn. 1978)), review denied (Minn. Sept. 13, 2000).

We note in particular that the cities have not cited any legal authority in the Wright County Zoning Ordinance or otherwise that prohibits consideration of written materials after close of the public comments portion of the commission's hearing.  Additionally, the commission made a distinct effort to remind members of the public of the close of the public comments portion of the proceedings and that items would not be received after the neighbors were reminded of the closure.  And finally, we note that the commission provided an opportunity for the cities' engineering firm to respond to comments made in the Klein Engineering letter.  On this record, we cannot say that the cities' due process rights were violated or that consideration of the Klein letter was improper.

Affirmed; motion granted in part.

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

 

[1]  This condition would require the construction and operation of a pipe and pump station to pump the effluent underground directly to the river.

[2] The Wright County Zoning Ordinance section on conditional use permits states:

505.1    Criteria for Granting Conditional Use Permit

In granting a conditional use permit, the [commission] shall consider the effect of the proposed use upon the health, safety, morals, and general welfare of occupants of surrounding lands.  Among other things, the County Planning Commission shall make the following findings where applicable.

(1)  That the Conditional Use will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted, nor substantially diminish and impair property values within the immediate vicinity;

(2)  That the establishment of the Conditional Use will not impede the normal and orderly development and improvement of surrounding vacant property for uses predominant in the area;

(3)  That adequate utilities, access roads, drainage and other necessary facilities have been or are being provided;

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

(5)  The use is not in conflict with the Policies Plan of the County; and,

(6)  That adequate measures have been taken or will be taken to prevent or control offensive odor, fumes, dust, noise and vibration, so that none of these will constitute a nuisance, and to control lighted signs and other lights in such a manner that no disturbance to neighboring properties will result.

[3]   The neighbors cite a previous unpublished decision from this court, In the Matter of Buffalo Bituminous's Petition for a Conditional Use Permit, 1996 WL 363389 (Minn. App. 1996) as support for their argument that the evidence relied upon by the commission was insufficient.  Apart from the fact that this opinion is of no precedential value, see Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800 (Minn. App. 1993) (holding that unpublished opinions are of persuasive value "[a]t best" and not precedential) and Minn. Stat. § 480 A. 08, subd. 3(c) (2000) (providing unpublished decisions of the Minnesota Court of Appeals have no precedential value), we do not find the neighbors' reliance on that opinion persuasive.  Nowhere in that opinion did we hold that a particular type or quantum of evidence on property values or other factors in the ordinance is required to sustain a CUP issuance under the Wright County Zoning Ordinance.