Terrence Hanson, Relator, vs. County of Carver Board of Commissioners, Respondent.

Terrence Hanson, Relator, vs. County of Carver Board of Commissioners, Respondent. A05-2047, Court of Appeals Unpublished, September 12, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2047

 

 

Terrence Hanson,

Relator,

 

vs.

 

County of Carver

Board of Commissioners,

Respondent.

 

 

Filed September 12, 2006

Affirmed
Klaphake, Judge

 

Carver County Board of Commissioners

File No. PZ20050004

 

 

Gary A. Van Cleve, Tamara O'Neill Moreland, Larkin Hoffman Daly & Lindgren Ltd., 1500 Wells Fargo Plaza, 7900 Xerxes Avenue South, Minneapolis, MN  55431-1194 (for relator)

 

Paul D. Reuvers, Susan M. Tindal, Iverson Reuvers, 9321 Ensign Avenue South, Bloomington, MN  55438 (for respondent)

 

Robert J.V. Vose, Kennedy & Graven, Chartered, 470 U.S. Bank Plaza, 200 South Sixth Street, Minneapolis, MN  55402 (for amicus San Francisco Township)

 

            Considered and decided by Lansing, Presiding Judge, Klaphake, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Relator Terrance Hanson challenges a decision by respondent County of Carver Board of Commissioners (the board) denying his application for a conditional use permit (CUP) to permit him to expand his existing gravel mine operations.  Relator argues that the board acted arbitrarily in denying his CUP because it met county zoning standards.  An amicus curiae brief in support of the county's decision to deny the CUP has been filed by San Francisco Township.

            Because the record supports four of the five findings issued by the board to deny the CUP, we affirm.

FACTS

            Relator owns 205 acres in San Francisco Township, Carver County.  A gravel mine has been in operation on the property since the 1950's.  A CUP for mining was originally issued in 1981; in 1992, the board amended the CUP to permit the expansion of the mine onto an additional 16 acres.  In 1999, the board issued a separate CUP for a 200-horse commercial stable that would attract up to 150 visitors on any given Saturday.

            On August 20, 2004, relator submitted an Application for Expansion of the CUP to allow for the mining of an additional 145 acres.  Relator later amended his application to reduce the expansion to 128 acres.  The application proposed to continue mining the southeast corner at current levels and to open a new pit in the north central part of the property on land currently used for horse boarding, trail riding, hayrides, and hay cropping.

            On February 9, 2005, the planning department prepared a memo noting that the expansion would "significantly change the volume and overall operations" at the site, which "has been used sporadically over the years" and that "the significant increase in truck hauling will be a key consideration for the operation."  Between February 15 and July 19, 2005, the planning commission held a number of public hearings.  Relator proposed several revisions to the application in an attempt to address concerns raised by staff, elected officials, and citizens.  Despite relator's agreement to noise and dust reduction measures and safety improvement measures on CR 45, the planning commission recommended that the board deny the CUP.

            The board considered relator's CUP application on August 1 and again on August 16.  On August 16, relator's representative indicated that the application was recently modified because it had been discovered that county ordinances allow only one access to the property.  A continuance of the matter was discussed because the modified application failed to adequately address at least two critical questions, including whether the location of the newly proposed access was appropriate given its proximity to an existing residence and whether the new access would be adequate without the addition of a passing lane on CR 45.  Relator refused to agree to an extension, and the board was bound to reach a decision.

            The board thereafter voted to deny relator's application and issued an order and findings to that effect.  Relator challenges the board's decision by certiorari.

D E C I S I O N

            "County Board decisions regarding a CUP are quasi-judicial and are reviewable by writ of certiorari."  Picha v. County of McLeod, 634 N.W.2d 739, 741 (Minn. App. 2001).  Our review is "limited to determining whether the decision was arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it."  Id. (quotation omitted).

            A CUP application may be denied only for reasons relating to the public health, safety, or welfare or to incompatibility with a comprehensive zoning plan.  SuperAmerica Group, Inc. v. City of Little Canada, 539 N.W.2d 264, 267 (Minn. App 1995), review denied (Minn. Jan. 5, 1996).  Not all reasons for the denial of a CUP need be legally sufficient and supported by facts in the record; a denial "is not arbitrary when at least one of the reasons given . . . satisfies the rational basis test."  Trisko v. City of Waite Park, 566 N.W.2d 349, 352 (Minn. App. 1997), review denied (Minn. Sept. 25, 1997).  But when an applicant satisfies all of the standards set out in the zoning ordinance, the county's denial of a CUP will be considered arbitrary.  Zylka v. City of Crystal, 283 Minn. 192, 196, 167 N.W.2d 45, 49 (1969).  Moreover, "denial of a [CUP] must be based on something more concrete than neighborhood opposition and expressions of concern for public safety and welfare."  Chanhassen Estates Residents Ass'n v. City of Chanhassen, 423 N.W.2d 335, 340 (Minn. 1984).

            Carver County, Minn., Zoning Code § 152.251 (2002) provides that "[a]n order for the issuance of a conditional use permit can be adopted only if all of the following [criteria] are found as fact."  Here, the board found that relator's CUP application failed to meet five of the ten listed criteria.  Each of the board's findings will be discussed separately below.

            1.         Section 152.251(A):  The conditional use is permitted as a permitted conditional use within the zoning district, and meets all requirements of this chapter and any other county, regional, state, or federal laws, ordinances, rules or regulations.

 

            The board found that this criteria was not met because the CUP application failed to satisfy Zoning Code § 152.080(C)(4)(a)(2), which provides that the mining activity "will have no substantial adverse impact on surrounding property or that the impact will be alleviated through the conditions of the permit."  In particular, the board found:

Heavy truck traffic and the significant modifications to County Road 45, along the westerly boundary of the existing residential neighborhood, may have substantial adverse consequences to the surrounding properties.  A comparative analysis, prepared by a certified appraiser, has been submitted.  The analysis indicates an adverse effect on surrounding property values.  Therefore, the proposed use would not meet all of the standards required for the specific conditional use permit.

 

Relator argues that the evidence fails to support the board's findings, which focus on the current condition of CR 45 and assume that relator's proposed modifications are not feasible and would not alleviate the increased traffic hazards.  As the county notes, however, the stretch of CR 45 that abuts the property winds along a hillside, with several signs already warning drivers and reducing the speed limit. 

            In addition, the application involved two accesses until a few days before August 16, when a one-access proposal was submitted and an acceleration lane was removed.  Relator refused to agree to another extension, thus forcing the board to make a decision; the board voted to deny the application without adding findings to address the newly proposed access.  While relator criticizes the board for assuming that his proposed modifications were not feasible and would not alleviate already existing safety concerns, the one-access proposal was not properly presented or developed.  We thus cannot conclude that the board acted arbitrarily.

            Relator further insists that he successfully rebutted and refuted the last-minute evidence presented by a real estate appraiser, who opined that the project would have an adverse impact on property values.  While we tend to agree with relator that the appraiser's opinion is suspect and cannot provide a basis to deny the CUP, the record supports the board's other bases for denial.

            2.         Section 152.251(B):  The conditional use will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted.

 

            The board found that this criteria was not met, relying on evidence that irritating levels of noise and dust are already present in the neighborhood and significant traffic and traffic safety issues would be generated by the expanded mining activities.  As summarized by the board, substantial public testimony was presented on the following:

[T]ruck noise and "jake braking" were already disruptive; dust and noise generated by current traffic, existing gravel roads/driveways, and permitted agricultural activities can be a nuisance; the lack of turn lanes and traffic controls of nearby intersections have already caused delays; personal experience and knowledge of accidents and emergency calls that have occurred on Co Rd 45; concerns about traffic patterns related to the acceleration lane, turn lane, and bypass lane that would abut the Carver Highlands neighborhood; the need for safety assurances due to school buses and children riding & playing in the neighborhood; and the fact that the existing pit is at a much lower elevation providing natural screening and dust/noise protection, while the new pit would not have those attributes.

 

            Relator insists that it was inappropriate for the board to base its decision on comments from the public.  But Minnesota courts have held that municipalities may consider neighborhood opposition to zoning issues, particularly when those concerns are specific and backed by other concrete evidence.  See, e.g., Swanson v. City of Bloomington, 421 N.W.2d 307, 313 (Minn. 1988); SuperAmerica Group, 539 N.W.2d at 267 (concluding that neighborhood testimony about observations of existing daily traffic congestion sufficiently concrete to justify city's disregard of expert who testified that increased traffic would be minimal); Chanhassen Estates Residents, 342 N.W.2d at 340 (concluding that denial of permit must be based on something more concrete than "non-specific" neighborhood opposition).

            This case is unlike others cited by relator, particularly an unpublished opinion reversing a township board's denial of a CUP, which involved the addition of only 75 trucks daily in and out of a proposed mine, the board's rejection of recommendations from its planner and engineer that the request be approved, and the board's reliance on unfounded concerns of neighbors despite opinions by experts to the contrary.  Here, expansion of relator's mining operations was estimated to have the potential of generating 800 daily truck trips; the planning commission recommended that relator's application be denied; and concrete evidence was presented by neighbors outlining their opposition to the project.  Given the record presented here, we cannot conclude that the board acted arbitrarily and without support when it found that the expansion of the mining operations would be injurious to the use and enjoyment of property in the immediate vicinity.

            3.         Section 152.251(D):  The effects of the proposed use will not be detrimental to the health, safety and welfare of Carver County or to the occupants of the immediate neighborhood.

 

            The board found that this criteria was not met because it would take more than three years to complete road improvements to accommodate the increased trucking activity.  The board further found that the three-year timeline for road improvements would exacerbate potential safety issues on CR 45 that related to road access.

            Relator, however, agreed that no mining would occur in the new north pit until the road modifications were complete.  As relator pointed out to the board prior to its August hearing, "[t]here is not a ‘delayed' timeframe because no mining will occur outside the existing permitted area until all road improvements have been completed."  Without considering how the last-minute, one-access proposal would affect the project, we agree with relator that the board's finding regarding the three-year delay in completing the road improvements is not supported by evidence in the record and does not support denial of the CUP in this case.

            4.         Section 152.251(H):  The use or development conforms to the County Comprehensive Plan.

 

            The board found that the CUP "conflicts with Policy 16B of the 2020 Comprehensive Plan," which allows certain activities in an Agricultural Area "in order to utilize or extract a natural resource," including a gravel mine.  Relator insists that because gravel mining is used as an example in the comprehensive plan, it is a specified use and must be allowed if compatible with existing uses.  See Yang v. County of Carver, 660 N.W.2d 828, 832 (Minn. App. 2003).

            However, the comprehensive plan further states that even a large scale activity to extract a natural resource in an agricultural area may not be an appropriate use if other criteria are met, including the need for an environmental assessment worksheet or for various permits from state agencies, or if there are substantial conflicts with existing land and water uses.  Relator agrees that his application triggered a mandatory EAW and would require several permits from other state agencies, including the Minnesota Pollution Control Agency and the Department of Natural Resources.

            Moreover, the board was cognizant that relator's project would vastly change the scope and size of the existing mining operations by (1) expanding the existing 16-acre gravel mine by 128 acres, despite the fact that the operation has been used only sporadically in recent years; (2) establishing a second mining operation that would extract up to one million tons of aggregate per year; (3) adding a new access onto a dangerous portion of substandard CR 45 at a rate of up to 800 trucks per day; (4) dramatically increasing mining on a site that has been used as a commercial horse stable with 200 animals and up to 150 visitors on Saturdays; and (5) intensifying commercial/industrial activity on a site that is directly adjacent to an existing 50-home residential development.  Given these concerns, we cannot conclude that the board acted arbitrarily by finding that relator's proposed "use would be too intense and would not be appropriate in the Agricultural Policy Area."

            5.         Section 152.251(I):  The use or development is compatible with the land uses in the neighborhood.

 

            The board found:

The focal point for the proposed operation would be at the intersection of Co Rd 45 & Gene's Road, which abuts the Carver Highlands residential neighborhood.  Heavy truck hauling generating 800 [additional daily trips] or more would provide virtually no transition from the existing residential land uses to the proposed industrial mining activities.  Therefore, the expanded sand and gravel mine would not be compatible with the residential land uses in the neighborhood.

 

            This finding focuses on the proposed access to CR 45, which changed just days before the last public board hearing, when relator presented an option for moving the proposed access farther north.  Again, while relator criticizes the board for failing to address his new proposal and for simply voting to deny it without including that proposal in its findings, the burden was on relator to establish that his application complied with county ordinances.

            In any event, as the county asserts, significant concerns were presented regarding increased traffic, noise, and dust.  The record thus supports the board's finding that relator's proposal is not compatible with land uses in the neighborhood.

            We affirm the board's decision to deny relator's CUP application.

            Affirmed.