Category: Conditional Uses/Special Uses

Improper ex parte contact only invalidated vote of commissioner making the contact

hdankbar

by Hannah Dankbar

Doug and Louise Hanson v Minnehaha County Commission
(South Dakota Supreme Court, October 29, 2014)

Eastern Farmers Cooperative (EFC) applied for a conditional use permit to build an agronomy facility. The facility would store, distribute and sell a variety of farm products, including anhydrous ammonia. The land the facility would sit on, and the surrounding area is zoned as A-1 Agricultural. The Minnehaha Planning Commission recommended approving the permit with ten conditions, even though local residents, including the Hansons, voiced their objections at the Planning Commission hearing because of safety and aesthetic concerns. The Hansons appealed to Minnehaha County Commission. In anticipation of the appeal one of the county commissioners (Kelly) toured an agronomy facility near Worthing, South Dakota. The facility was owned by EFC, but it is unclear if the commissioner knew this when he set up the tour. The County Commission held its hearing and approved the permit by a unanimous vote.  Commissioner Kelly disclosed at the hearing that he had touring the Worthing facility, and that he was impressed by its safety measures. The Hansons appealed to the circuit court. The court held that the Commissioner Kelly’s vote did not count due to the improper ex parte communication, but the other votes were not affected and so the approval of the permit stood. The Hansons appealed the decision.

The Hansons claim that they were denied due process in two ways: (1) that the Minnehaha County Zoning Ordinance (MCZO) does not provide adequate criteria upon which to base a decision to grant a conditional use permit, and (2) that Commissioner Kelly’s participation in the appeal to the County Commission denied them a fair and impartial hearing,

In giving counties ability to control their own zoning, counties must put in place criteria for determining when conditional use permits may be granted.  The Minnehaha County Zoning ordinance delineates three general criteria applicable to every conditional use permit application, and an additional six applicable to the types of agricultural uses at issue in this case.  The South Dakota Supreme Court noted that zoning ordinances are presumed to be constitutional, and that to overcome this presumption the challenging party must show the ordinance is arbitrary, capricious and unconstitutional. Abstract considerations are not sufficient. The South Dakota Supreme Court rejected the Hanson’s argument because they failed to show any way in which the standards in the ordinance did not pass muster.

2. The Hansons argue that the EFC should be required to “begin anew” with the permitting process because the votes of the other commissioners were influenced by the statements of Commissioner Kelly  To meet their burden, however, The Supreme Court stated that the Hanson’s must actually show that either Commissioner Kelly’s actions were sufficient to taint the entire preoceeding or that one or more of the other commissioners should be disqualified individually.  The Hanson’s failed to produce any evidence of any influence Kelly’s actions may have had on the other commissioners.  The court concluded that invalidating Kelly’s vote alone was a sufficient remedy.  With that vote invalidated, the Commission still approved the conditional use permit 3-0.

 

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MN township not authorized to levy permit review expenses against landowner

by Rachel Greifenkamp

Great Western Industrial Park, LLC v. Randolph Township
Minnesota Court of Appeals, September 8, 2014)

South of the Twin Cities along the Minnesota-Wisconsin border lies Randolph Township. Here, Recovery Technology Solutions (RTS) was considering purchasing land from Great Western Industrial Park, LLC to use as the site for a facility for recycling asphalt shingles. RTS submitted an application to Randolph Township for a conditional use permit that was denied, and so RTS decided against purchasing the available land. After the denial of the application RTS received a letter stating that it was to reimburse the township for all expenses incurred in the application review, which totaled $31,666.41 (mostly legal and consulting fees). When RTS did not pay the expenses the township wrote a letter to Great Western (the landowner) notifying it of its responsibility for the expenses, as well as interest, late charges, recording charges, and attorney’s fees. The township also informed Great Western that the amount was going to be certified to the County Auditor for collection with the 2014 property taxes.  Great Western sued.

Minn. Stat. 366.012 states:

If a town is authorized to impose a service charge for a governmental service provided by the town, the town board may certify to the county auditor of the county in which the recipient of the services owns real property, on or before October 15 for each year, any unpaid service charges which shall then be collected together with property taxes levied against the property.

Minn. Stat. 462.353 provides:

A municipality may prescribe fees sufficient to defray the costs incurred by it in reviewing, investigating, and administering an application for an amendment to an official control established pursuant to sections 462.351 to 462.364[governing municipal planning and development] or an application for a permit or other approval required under an official control established pursuant to those sections. Except as provided in subdivision 4a,[1] fees as prescribed must be by ordinance. Fees must be fair, reasonable, and proportionate and have a nexus to the actual cost of the service for which the fee is imposed.

Noting that any prescribed fee “must be by ordinance,” the Court of Appeals reviewed the township’s zoning and fee ordinances and found no provision that permits the township to impose a fee on a property owner when a CUP application is denied and the CUP applicant fails to pay the costs incurred by the township in processing the application. The township relied on a section in the fee ordinance that requires that a $300 nonrefundable fee and a minimum $1,200 escrow payment be submitted with a CUP application, but the court found that this language does not authorize the township to impose a service charge on the owner of the property for which the CUP was sought.

The township was not authorized to impose a service charge against Great Western for the expenses incurred by the township in processing RTS’s conditional use permit application, and the ruling fell in favor of Great Western.

 

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Claim preclusion not applicable to second application for conditional use permit for frac sand mining

Gary Taylor

by Gary Taylor

O’Connor v. Buffalo County Board of Adjustment and Glacier Sands, LLC
(Wisconsin Court of Appeals, April 22, 2014)

On January 13, 2012, R&J Rolling Acres (R&J) applied to Buffalo County for a conditional use permit to establish a frac sand mining operation on property zoned Agricultural.  The application identified R&J as the “owner” of the property and Glacier Sands, LLC, as the “developer.” Among the application materials was included a map showing the proposed route trucks would use to travel to and from the property.  R&J asserted the haul route would be “south on [State Highway] 88 to [State Highway] 35,” and that an estimated 80 trucks would leave the property via this route every weekday.  In February 2012 the Buffalo County Board of Adjustment (Board) held a public hearing on the application, which was continued to Marc.  Numerous people spoke up at the hearings about issues related to traffic safety on Highway 88, especially after R&J clarified it expected 126 trucks to leave the site each day instead of 80. At the end of the meeting, the Board voted 2-1 to deny R&J’s application. In its written decision issued March 29, the only reason the Board identified for denying the application was its concern that the large number of trucks leaving the mine site each day would decrease traffic safety on Highway 88. 

R&J did not seek circuit court review of the Board’s decision.  Instead, on March 27, 2012, R&J submitted a second CUP application.  The second application was identical to the first, except that it corrected a misspelled word, changed the proposed number of trucks leaving the site from 80 per day to 126, and proposed to have trucks hauling six days per week instead of five.  After a hearing (continued twice to obtain and digest a traffic study from the Wisconsin DOT), the Board granted the second conditional use permit request subject to 43 conditions. Two conditions were to limit to 105 the number of truck loads laving the site daily, and to prohibit hauling on weekends and holidays.  The Board’s written decision was similar to the earlier written denial, except that the Board explained:

The Wisconsin DOT Northwest Region contracted with AECOM to conduct a “Traffic Safety Impact Assessment” for [Highway 88] during May and June of 2012 in light of the potential increase in truck volume on [Highway 88] from proposed, new non-metallic mine operations in the area.  Representatives of the DOT were present at the hearings/meetings to present the initial as well as updated results of their assessment and answer questions.  Specifically, AECOM addressed crashes and crash rates as well as geometric and operational features pertaining to [Highway 88].  Overall, the [DOT] acknowledges that [Highway 88] may have some substandard features, but believes the road can handle increased traffic volumes.

O’Connor, one of the citizens opposing the permit, filed suit, claiming that the Board erred in two respects:  (1) the Buffalo County zoning ordinance does not allow frac sand mining as a conditional use in the agricultural district; and (2) after the Board denied R&J’s first CUP application, it was prohibited from considering the merits of R&J’s second application. 

Frac sand mining as a conditional use.  The Court of Appeals reviewed the Buffalo County zoning ordinance and found that it allows as a conditional use “[m]anufacturing and processing of natural mineral resources indigenous to Buffalo County incidental to the extraction of sand and gravel and the quarrying of limestone and other rock for aggregate purposes, including the erection of buildings, and the installation of necessary machinery and equipment incidental thereto, but not the storage of cement, asphalt, or road oils or the mixing of concrete or black top or related materials, provided that any county, town, or municipal government or its agent may store or mix such materials when incidental to the improvement of highways or streets.”  O’Connor argued that because frac sand mines do not extract sand “for aggregate purposes,” they are not allowed as conditional uses.  The Board argued that the phrase “for aggregate purposes” referred only to “the quarrying of limestone and other rock,” and therefore “manufacturing and processing of natural mineral resources indigenous to Buffalo County incidental to the extraction of sand and gravel” was allowed.  Finding both interpretations reasonable, the Court deferred to the Board’s interpretation because under prior caselaw the Board’s decision is entitled to a presumption of correctness.

Consideration of second application.  O’Connor asserted that, after the Board denied R&J’s first application, R&J’s “sole remedy … was to commence a certiorari action in the circuit court.”  The Court disagreed.  It noted that a county may enact a rule prohibiting a party whose application to the zoning board has been denied from filing a new application absent a substantial change in circumstances, but Buffalo County has not done so.  Absent such a rule, an individual is free to submit a second conditional use permit application after the first has been denied, as long as he or she is willing to pay a second application fee.  The Court rejected O’Connor’s assertion that the Court’s conclusion places an unfair burden on those opposing the application and creates an uneven playing field.  “Filing successive applications clearly places a significant burden on the  applicant, as well as those opposing the application.  For each additional application, the applicant must pay an additional review fee.  The applicant must spend time preparing a new application and appearing at new hearings before the board of adjustment.  If the board ultimately grants a successive application, the applicant then faces the prospect that opponents will file an action for certiorari review, in which the applicant will likely choose to participate to defend the permit.”

Alternatively, O’Connor relied on the doctrine of claim preclusion.  “Claim preclusion provides that a ‘final judgment on the merits in one action bars parties from relitigating any claim that arises out of the same relevant facts, transactions, or occurrences.…The doctrine has three elements:  (1) identity between the parties or their privies in the prior and present suits, (2) prior litigation that resulted in a final judgment on the merits by a court with jurisdiction, and (3) identity of the causes of action in the two suits.”  In questioning whether the doctrine extends beyond judicial judgments, neither O’Connor nor the Court could cite any Wisconsin case holding that a board of adjustment’s unreviewed denial of an application precludes it from considering a subsequent application submitted by the same party.  Indeed, the Court again pointed to the existence of local rules prohibiting successive applications in support of its conclusion that claim preclusion did not bar the Board in this case from considering R&J’s second CUP application.  “If claim preclusion operated to bar zoning boards from considering successive applications, there would be no need for these successive application rules.”

The Court affirmed the Board’s decision to grant the conditional use permit.

 

 

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Issuance of conditional use permit for nonconforming use does not usurp landowner’s nonconforming use rights

by Rachel Greifenkamp

Lorraine White, Trustee v. City of Elk River

(Minnesota Supreme Court, December 4, 2013)

Wapiti Park campground in the City of Elk River, Minnesota began operating in 1973, seven years prior to the City enacting a zoning ordinance that, at first, did not permit campgrounds in that location, then permitted them as conditional uses, then even later again removed campgrounds as either conditional or permitted uses. Wapiti Park applied for and was granted a conditional use permit in 1984 (during the period of time when they were allowed as conditional uses) even though it could have continued operating as a nonconforming use.  When Wapiti Park later violated the conditions of the conditional use permit the city revoked the permit and asserted that Wapiti Park was no longer authorized to operate the campground.  Wapiti Park sued the city.  The district court found in favor of Wapiti Park but the Court of Appeals reversed.  Wapiti Park appealed to the Minnesota Supreme Court.

One question addressed in this case is whether a landowner of a nonconforming use who voluntarily complies with a later-enacted zoning ordinance relinquishes the nonconforming-use status and the right to operate under that status in the future. This issue has been answered in opposite ways in other jurisdictions. The Minnesota Supreme Court concluded that a landowner does not surrender the right to continue a nonconforming use by obtaining a conditional use permit unless the landowner affirmatively waives the right to be treated as a nonconforming use.  Waiving a right in Minnesota requires knowledge of the right and an intent to waive the right. In this case, the City of Elk River had the burden of proving that Wapiti Park had both knowledge of their right to remain a nonconforming use and intended to waive the right when they applied for the conditional use permit.  Although Wapiti Park knew of its nonconforming use rights as a campground in 1984 when it applied for a conditional use permit, the city produced nothing for the record to indicate that Wapiti Park intended to waive or subordinate its rights to the city’s zoning regime.   The court concluded that the conditional use permit did not alter the Park’s status as a nonconforming use.

The second issue addressed was whether the city had authority to terminate the nonconforming use by revoking the conditional use permit. Minn. Stat. secs. 465.01 and 462.57 describe four circumstances under which a nonconforming use may be terminated.  They include eminent domain, discontinuance of the nonconforming use, destruction of the nonconforming use, and judicial determination that the use is a nuisance.  The Minnesota Supreme Court ruled that Wapiti Park may continue to operate the campground as a nonconforming use because these statutes do not include the revocation of a previously issued conditional use permit as a condition of termination, and none of the identified four circumstances applied to Wapiti Park.  Interestingly, the court identified a nonconforming use as “a constitutionally protected property right,” citing a Connecticut court case and not the Minnesota constitution in support of that proposition.

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Record sufficient to show council considered all CUP standards

by Kaitlin Heinen

Thomas DeBold v. City of Ellisville, MO
(Missouri Court of Appeals, August 29, 2013)

Wal-Mart was granted a conditional use permit (CUP) from the city council of Ellisville, Missouri on September 5, 2012. The CUP was valid for 12 months via passage of Ordinance No. 3083. Prior to the Ordinance, the CUP had been reviewed by the City’s Planning and Zoning Commission, the City Attorney, the City Planner, St. Louis County, and several other persons and entities. During the July 18, 2012 City Council meeting, the City introduced 27 documents, including reviews done by both City staff and outside consultants.  On September 19, 2012, Thomas DeBold filed an appeal with the City challenging the CUP, but on October 3, 2012, DeBold’s appeal was denied. The trial court found the decision to grant the CUP supported by competent and substantial evidence upon the record, which DeBold appealed to the Missouri Court of Appeals.

First, the court must “consider the ruling of the municipal agency, not the circuit court” and decide only whether the municipal agency’s decision is supported by substantial and competent evidence upon the record. DeBold argued that the trial court applied the incorrect standard of review and “failed to make the required factual findings and legal conclusions.” However, the Missouri Court of Appeals found otherwise after considering the extensive documents reviewed and the factual findings published by the trial court in their “Order and Judgment.”

DeBold also argued that the trial court erred in denying his motion for judgment. City Code Section 400.150 (B)(1) provides that, “[i]f an authorized agent or the leaseholder of the use is requesting the conditional use permit, the property owner must also sign the conditional use permit application.” DeBold claimed that Clarkchester Apartments Association (the landowner) did not sign authorization for the CUP. However, the record shows that all 8 members, who own the Clarkchester apartment buildings, signed the forms, thus satisfying Section 400.150(B)(1) and properly allowing the trial court to deny DeBold’s motion for judgment on these grounds.

Then DeBold argued that the trial court erred in finding that the application for the CUP met the requirements of City Code Section 400.150(F) and that the application was supported by competent and substantial evidence. The City countered that DeBold failed to address 13 of the 17 requirements set out in the Ordinance relating to the granting of a CUP, which thus waives any possible argument on those factors.

In regards to competent and substantial evidence on the record, the court held that there was enough to support the City Council’s decision. As for traffic conditions, the City reviewed the October 11 “Trip Generation and Distribution Technical Memo” and the March 2012 “Traffic Impact Study,” both of which showed that assumptions made on traffic conditions during and after the Wal-Mart Supercenter’s development seemed reasonable and had an overall positive impact. Additionally, the area for the development has been zoned as C-3 Commercial for many years, and the development is similar in size to existing retail centers to the north and east of the area. Also, “there was evidence that the proposed development would not negatively impact traffic, would not increase fire hazards, would increase stormwater capabilities and water quality at the site, would lead to improved utilities, would result in environmental contaminants being cleaned up, would discourage crime through the use of bright lighting, manned store entrances, and surveillance cameras, would increase the City’s revenue, and would catalyze further development within the City”—all compatible uses with the surrounding neighborhood. The City also found “that the proposed project is consistent with the City’s Comprehensive Plan and will feature many of the attributes envisioned as part of the Great Streets Master Plan.” All of this is competent and substantial evidence that the development is consistent with “standards of good planning practices” and is evidence that the proposed use of the development is both reasonable and appropriate for a commercially zoned area.

Finally, DeBold argued that the Ordinance No. 3083 (the CUP) makes no reference to some factors related to the CUP standard.  However, the certified record indicates that City considered all 17 factors required by the City Code. He also claimed that the trial court erred in holding that he failed to adequately plead procedural irregularities before the trial court. Even if he had, “he failed to identify and/or raise any procedural irregularity before the City Council.” To the contrary, “the record demonstrates that DeBold had every opportunity to raise any alleged procedural problem because every document and information necessary to do so was made available to him months before he filed his lawsuit.” (“As public records of the City, these documents were available to any member of the public, from and after the July 18, 2012, meeting.”) Rather, “DeBold has failed to exhaust his administrative remedies [in the context of review of city zoning decisions pursuant to Chapter 89] and thus is not now entitled to judicial review.”

The Missouri Court Appeals affirmed the trial court’s ruling.

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Issue preclusion can be applied to bar zoning board proceedings, but applicants for 1998 and 2011 special exceptions were different

Gary Taylor

by Gary Taylor

Prybil Family Investments, Ltd., v. Board of Adjustment of Iowa City
(Iowa Court of Appeals, September 5, 2013)

In July 2011 Streb Construction Company filed an application for a special exception to operate a wet batch concrete plant on land zoned “General Industrial”  in the Scott-Six Industrial Park in Iowa City.  After a public hearing the Iowa City Board of Adjustment (Board) approved the special exception in September 2011.

Prybil Family Investments owns agricultural property adjacent to the land in question.  The land has been used for farming, and will continue to be for the forseeable future. Prybil filed a writ of certiorari to contest the Board’s decision.  Prybil’s main argument was that the same property owner filed an application for a special use permit to operate a cement plant on the same property in 1998, and was denied.  Therefore the doctrine of issue preclusion prevented the Board from considering the 2011 application (issue preclusion prevents the same issue from being reconsidered again in a later proceeding).  Alternatively, Prybil argued that the Board’s decision was not supported by substantial evidence. The district court disagreed on both claims and allowed the permit to stand.  Prybil appealed to the Iowa Court of Appeals.

The Court of Appeals began by noting that Iowa case law has never addressed whether the concept of issue preclusion applies to zoning board determinations.  It did acknowledge that in Johnston v. Christenson, the Iowa Supreme Court stated that “an administrative adjudication by an entity such as the board of adjustment can have a preclusive effect in a judicial proceeding..”  It also referenced Am. Jur. 2d, Zoning and Planning, which states that “res judicata (a concept that encompasses issue preclusion) applies to administrative zoning decisions in order to promote finality of decisions unless it is shown that there has been a substantial change of circumstances since the earlier ruling.” The Court, therefore, determined that issue preclusion can be applied to bar a second application for a special exception if the following elements, cited in Johnston v. Christenson, are met: (1) the issue must be identical; (2) the issue must have been raised and litigated in the prior action; (3) the issue must have been material and relevant to the disposition of the prior action; and (4) the determination made in the prior action must have been essential and necessary to the resulting judgment.” “However,” the Court noted, “if there has been a substantial change of circumstances” the concept will not apply.

Before beginning its analysis of the four factors it cited, it determined that, in any event, Prybil’s issue preclusion claim failed because the applicant for the 2011 special exception was not the same as the applicant for the 1998 special exception. Even though “Streb Construction Company” applied for the 2011 permit, and “A.F. Streb” applied for the 1998 permit the Court concluded that “Prybil presented no evidence showing that the parties were identical or [in close legal relation].”  The Court went on, however, to note that Prybi’s claim would also fail on the Christenson factors.  The mobile wet batch plant desired in 2011 incorporates improved environmental protections.  The 2011 and 1998 applications were for different lots in the Industrial Park.

After a lengthy discussion about what issues related to the substantial evidence claim were properly preserved for appeal by Prybil, the Court addressed the substantial evidence claim itself.  Prybil contended that the dust pollution from the plant will interfere with Prybil’s use an enjoyment of its property by damaging crops, but the Court did not disagree with the Board’s conclusion that conditions attached to the special exception – requiring Streb to pave the surrounding roads and plant trees to act as a screen from adjacent properties – were sufficient to satisfy the concern.  Prybil also contended that its property values would be diminished by the plant, but the Court again found sufficient evidence to support the Board’s conclusion that there were no Heavy Industrial zones in Iowa City where the plant could locate by right and any opinions on effect on future property values were merely speculative.  Although Prybil offered contrary testimony from two realtors, the Court said that the information presented at the hearing was sufficient to support the Board’s decision.

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Failure to appeal original determination of permit violation prevents revisiting original permit conditions

by Kaitlin Heinen and Gary Taylor

Eric and Deborah Ringsred v. City of Bayfield, Wisconsin
(Wisconsin Court of Appeals, May 21, 2013)

In 2006, Eric and Deborah Ringsred were granted a conditional use permit to operate a bed and breakfast located in an R-1 residential zoning district in the City of Bayfield, Wisconsin. One of the conditions required a separate cottage to remain vacant until the City was notified the cottage was to be used for habitation. On September 8, the Ringsreds notified the City that they planned to use the cottage as an accessory dwelling. On September 19, the City’s attorney told the Ringsreds that the cottage could not be used as such for the bed and breakfast unless another conditional use permit was obtained, as required by the City’s ordinances. However, the Ringsreds did not apply for an additional conditional use permits regarding the cottage.

On July 2, 2009, the City’s zoning administrator notified the Ringsreds that it had “come to the City’s attention the cottage was occupied during a portion of this past year…[The City] respectfully request[ed] [the Ringsreds] to respond to this issue in writing prior to the Commission’s next meeting on July 20, 2009.” The Ringsreds responded, stating that during the “non-B&B period of the year,” someone needed a place to stay and was allowed to stay in the cottage, but it was not a “rental situation.” In August and September 2009, the City of Bayfield Plan Commission convened a hearing in regards to the alleged permit violations, which the Ringsreds attended. On September 15, 2009, the Commission issued a decision, which held that the Ringsreds had violated the conditional use permit by allowing the cottage to be used as a dwelling. The Commission upheld the requirement that the cottage remain vacant and that an application need be completed for it to be used as an accessory dwelling. The Commission also required that the Ringsreds respond in writing that they would not use it as a dwelling without complying with this requirement, which the Ringsreds promptly did.

In September 2010, the City investigated another complaint that the cottage was being used as a residence. A hearing was held on November 9, 2010, where evidence established that the cottage had been occupied during the summer of 2010. The Commission decided that there was no reasonable modifications of the conditional use permit that could be made to assure compliance, so the Commission voted to revoke the permit.The Board of Appeals upheld this decision at a February 15, 2011 hearing. The circuit court later affirmed the Board, so the Ringsreds appealed to the Wisconsin Court of Appeals.

On appeal, the Ringsreds claimed they notified the City in 2006 of their intent to use the cottage as an accessory dwelling, which fulfilled the condition in the original permit. The Ringsreds thus argued that the Commission  had no authority to modify the permit at the September 15, 2009 hearing since there was no permit violation. The Wisconsin Court of Appeals disagreed.

First, the Ringsreds never appealed the Commission’s September 2009 modification. As such, the Ringsreds were not entitled to fresh consideration of all relevant facts and law surrounding the conditions of the 2006 permit or the alleged 2009 violation. The Ringsreds had been provided the opportunity to submit testimony and documents to the Board, but did not. The evidence available was sufficient to support the Board’s decision because “[t]he  Board reasonably inferred the purpose of the original conditional use permit’s third condition was to ensure that occupancy of the cottage would be in compliance with the City’s zoning ordinances.” Further, the Ringsreds were explicitly informed by the City’s attorney of the requirement for a separate conditional permit to use the cottage, and the Ringsreds made no effort to obtain such an additional permit. Not only did the Ringsreds not object to the permit modifications, they promptly complied with the requirement that they provide a written commitment to the Commission that they would not use the cottage as a dwelling without obtaining the required permit. Thus the Ringsreds’ multiple violations of their permit were enough to sustain the Board’s decision that no reasonable further modifications could assure compliance with the ordinance, given the history of their case. So the Wisconsin Court of Appeals affirmed the Board’s decision as well.

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MN county board had reasonable basis for denying conditional permit for asbestos disposal

by Kaitlin Heinen

VONCO IV Austin, LLC v. Mower County, et al.
(Minnesota Court of Appeals, February 19, 2013)

VONCO IV Austin, LLC challenged the Mower County Board of Commissioners’s decision to deny its conditional use permit to dispose of friable asbestos at its landfill facility. On appeal, the Minnesota Court Appeals must affirm the Board’s decision unless it was unreasonable, arbitrary, or capricious. VONCO first argued that the Board’s decision was arbitrary and capricious because the findings of fact were adopted after the resolution without using motion, second, and majority vote procedures. Minn. Stat. § 15.99 (2010) states that a board must adopt findings contemporaneously with its decision to deny a conditional use permit, or at the latest at “the next meeting following the denial of the request but before the expiration of the time allowed for making a decision.” The Minnesota Court of Appeals concluded that the Board adopted its findings within a reasonable time after its denial. When the Board denied the conditional use permit, it had passed Resolution #28-12, which included the factual basis for its decision. The factual basis was nearly identical to the Board’s findings of fact, which were adopted at the same meeting. After discussion, the findings of fact were written down and signed by the vice-chairperson, which the Minnesota Court of Appeals held was consistent with § 15.99.

VONCO also argued that there was insufficient evidence in the record to conclude that there would be a problem with asbestos dust, and that such a problem would negatively impact property values. The Minnesota Court of Appeals disagreed and held that the record contained testimony that strong winds tend to blow dust and other debris from VONCO’s landfill onto neighboring properties. County staff members indicated that friable asbestos poses a risk of becoming airborne, and that this is especially dangerous because any exposure to asbestos dust creates a serious health risk. One county commissioner testified that he believed the addition of friable asbestos would negatively impact property values, based on his experience as a professional real estate appraiser. Because county officials have sufficient expertise to determine impacts on property values, the Minnesota Court of Appeals concluded that the evidence was sufficient to support the denial of the conditional use permit.

VONCO further argued that the evidence in the record was insufficient because some of it was in the form of neighbor testimony. The board “may consider neighborhood opposition only if based on concrete information.” That is, vague “concerns” are not sufficient. However, neighbor testimony that is concrete, describes current conditions, and includes information based on scientific reports provides a sufficient basis to deny a conditional use permit. The Rythers, owners of a neighboring property, testified that the winds frequently blow dust and debris from VONCO’s property onto theirs, that a recent fire at VONCO’s site caused their home to be inundated with dust and ash, and that these conditions make it unlikely that VONCO would be able to prevent friable asbestos from escaping. The Rythers also provided the Board with copies of complaints, enforcement actions, and orders from the EPA regarding VONCO’s improper disposal of materials, including asbestos. Because the Rythers’ testimony was concrete and not limited to “concerns,” the Minnesota Court of Appeals concluded that this evidence was sufficient to support denying the conditional use permit request.

Finally, VONCO argued that the Board’s decision is arbitrary and capricious because the Board failed to consider reasonable conditions before denying the conditional use permit. The Board’s meeting notes showed that the Board considered more than 30 recommended conditions. Because the Board considered the possibility of approving the conditional use permit  with conditions, the Minnesota Court of Appeals concluded that it was not arbitrary and capricious for the Board to find these conditions insufficient and deny the request. The Mower County Board of Commissioners’ decision was affirmed.

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Investigations by zoning board member outside the hearing process did not give rise to due process violation

by Kaitlin Heinen and Gary Taylor

Timothy Hutchinson v. Wayne Township Board of Zoning Appeals
(Ohio Court of Appeals, 12th Appellate District, September 10, 2012)

Tim Hutchinson filed an application for a conditional use permit from Wayne Township Board of Zoning Appeals (BZA) to operate a Halloween-themed nature walk on part of Jana Hutchinson’s farm, which was zoned A-1, agricultural district. The BZA held a hearing for Tim Hutchinson’s application in July of 2008. At this hearing, it was found that the nature walk would be open 6-8 weekends per year during the Halloween season from 5pm-midnight. Traffic would come from Wayne-Madison Road using two unpaved roads, while parking would be provided in nearby open fields. The BZA  found that Wayne-Madison Road is a narrow, two-lane, dead-end road with no lighting and with narrow berms that steeply slope into drainage ditches, although Hutchinson presented expert testimony from a traffic engineer that Wayne-Madison Road would be able to handle the additional traffic. The BZA also heard complaints from residents in the area, which addressed safety issues arising from the use of Wayne-Madison Road by drivers who are inexperienced with gravel roads as well as the peace and the security of the residents in area that may be affected by the increased traffic. The BZA adjourned the hearing in progress, expressing concern that Tim Hutchinson was not a proper applicant since he was only a tenant on the property and not the landowner. Jana Hutchinson was then joined on the application for a conditional use permit, and when the hearing resumed she provided additional information to BZA about security, traffic, road maintenance, and insurance for the nature walk.

In December of 2008, the hearing was reconvened. Tim Hutchinson testified that he estimated 500 cars would be expected at the nature walk each evening. However, BZA member Carleen Yeager stated that she had researched attendance at other Halloween-themed events and, to the contrary, 500 cars would be a “light night” and that nearly 1500 cars would be expected on a “good night.” Tim Hutchinson countered that the nature walk was new and that he was “starting off small.” At the end of the hearing, BZA member Jerry Gerber moved to deny the Hutchinsons’ application.  The vote was unanimous against the application. The Hutchinsons appealed the BZA’s oral denial of the application to the Butler County Court of Common Pleas and the case was remanded to the BZA for the issuance of a written decision.

In March of 2010, the BZA issued its written decision, which found that the Hutchinsons’ nature walk would be inconsistent and incompatible with the current uses of the surrounding area and would adversely affect the general welfare of neighboring residents in the area. The Hutchinsons’ appealed. In January of 2012, the common pleas court issued its decision that affirmed the BZA’s denial of the Hutchinsons’ application for a conditional use permit.

The issue before the Ohio Court of Appeals in this decision then is that “the common pleas court erred to the prejudice of the [appellants] by affirming the BZA’s decision.” The Hutchinsons claimed that the trial court erred in its affirmation of the BZA’s decision, even though the appellants had satisfied all requirements of the zoning resolution, and that the trial court erred in finding that their due process rights were not violated by BZA member Yeager’s outside investigation.

In regards to the Hutchinsons’ first claim, the township’s zoning code requires that conditional uses must meet several criteria, such as not adversely affecting the health, safety, comfort and general welfare of the surrounding area by threats of traffic hazards, noise disturbances, night lighting, fire hazards, etc. (Section 25.053). However, citing prior case law the court stated that satisfaction of these requirements does not make approval automatic, and that the township zoning code also requires the BZA to “give due regard to the nature and condition of all adjacent uses and structures” surrounding the proposed conditional use. After reviewing the record, the court found that the Hutchinsons did not satisfy all the requirements in the code. Despite the Hutchinsons’ presentation of an expert witness, the BZA had reason to find that the increased traffic would be incompatible with the surrounding area. Thus the trial court did not err in their decision to affirm the BZA’s denial on this count.

As for the due process violation alleged, “[t]he essence of due process dictates, at the very least, that an individual have an opportunity to be heard and to defend, enforce and protect his rights before an administrative body in an orderly proceeding.” Here, Yeager admitted to making “some calls” inquiring into the reasonable number of cars to be expected for a Halloween-themed event. The Hutchinsons argued that her statement negatively affected their ability to have a fair hearing, since they were not able to cross-examine Yeager’s informants as well as Yeager herself, at the risk of losing her vote. Again citing previous caselaw, the court stated that “[t]he combination of investigative, executive and adjudicative functions does not necessarily create a risk of bias or unfairness in an administrative adjudication.” The court noted that the BZA’s decision stated, in part, that it was denying appellants’ application because the Nature Walk “would significantly increase traffic flow, according to applicant’s testimony, by hundreds of cars each evening.” From this statement, according to the court, “it is clear that the BZA did not rely on Yeager’s view that as many as 1,500 cars would be traveling Wayne-Madison Road, but only that 500 cars would be on the road, as indicated by Tim Hutchinson.”

Further, the court noted that the BZA unanimously denied appellants’ application. Thus, even if Yeager’s statements demonstrated her own bias and prejudice toward the Nature Walk, the exclusion of her vote would not have altered the result.   No due process rights were violated.

The judgment of the trial court was affirmed, maintaining the denial of the Hutchinsons’ application for a conditional use permit to operate a Halloween-themed nature walk.

Conditional Uses/Special Uses, Conflict of interests and/or bias, Due Process, Ohio courts, Zoning board of adjustment , , , ,
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Non-profit association has standing to challenge major North Dakota coal gasification facility; loses on merits

Gary Taylor

by Gary Taylor

Dakota Resource Council, et al. v. Stark County Board of County Commissioners
(North Dakota Supreme Court, June 7, 2012)

Great Northern planned to construct and operate a coal gasification facility on 8,100 acres of land in Stark County. Great Northern’s planned complex would include a coal gasification plant, chemical fertilizer plant, electrical power plant, coal mine, solid waste landfill, and facilities for manufacture and storage of hazardous, explosive, and odorous products. Great Northern submitted an application to the Stark County Zoning Commission (Commission) to change the zoning of the land from agricultural to industrial and to allow nine conditional uses of the land, including “[m]ineral and other substance exploration or excavation and mining [in] accordance with provisions of Sec. 6.10” of the Stark County Zoning Ordinance. The Commission scheduled a hearing and sent notice by certified mail to all persons who owned land within 200 feet of the boundaries of the proposed rezoned tract. Following the hearing, the Commission voted to recommend that the County Board of Supervisors (Board) approve the application, conditioned upon Great Northern obtaining all necessary local, state, and federal permits or approvals. The Board subsequently approved the application to rezone the property from agricultural to industrial and approved the requested conditional uses. The Board’s approval was subject to several express conditions, including a requirement that Great Northern “obtain all the necessary local, state and federal approvals, licenses and permits relative to the operation of the coal mine.”

The Dakota Resource Council (Council) is a membership-based non-profit corporation which, among other things, works for preservation of family farms, regulation of coal mining and oil and gas development, protection of ground water and clean air, and sound management of solid and toxic wastes. Neighbors United is an unincorporated association which promotes the protection of farming and ranching. The Council, Neighbors United, and several individuals who owned land near the rezoned tract appealed the Board’s decision to the district court. The district court initially determined that the Council, Neighbors United, and the individual landowners had standing to challenge the Board’s decision, but the district court affirmed on the merits the Board’s decision to rezone the property and allow the conditional uses.

The Council, Neighbors United, and landowners appealed.  The Board and Great Northern cross-appealed, arguing that the Council lacked standing to appeal the Board’s decision to the district court.

Standing.  The North Dakota Supreme Court noted at the outset that “standing is the concept used to determine if a party is sufficiently affected so as to insure that a justiciable controversy is presented to the court.”  A not-for-profit association such as the Council that has not suffered an injury itself must satisfy a three-pronged test to demonstrate standing: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. In addition, a nonprofit membership corporation has standing to seek judicial review on behalf of its members, of governmental or municipal regulations directly affecting such members.  The Board and Great Northern challenged the Council’s standing only on the first prong of the test.  The Court affirmed the district court’s conclusion that the Council had standing in this case, at the same time acknowledging that it presented a “close question.” The Stark County Zoning Ordinance requires that, when a proposed amendment to the Zoning Ordinance and Map affects a property use, all property owners within 200 feet of the affected property must be notified of the hearing by personal service or certified or registered mail. In this case, the record demonstrated that at least two individuals identified as Council members received notice of the scheduled hearing from Stark County by certified mail because they owned property within 200 feet of the proposed rezoned tract.  The Court saw the notice requirement “effectively [as] a legislative determination that landowners within 200 feet of the proposed rezoned property have a significant, protectable interest in the Board’s decision whether to grant an application to rezone the property and permit requested conditional uses.  The notice requirement established that Kenneth Kudrna and Randall Kudrna’s property interests were affected by the Board’s decision in a manner different than that suffered by the public generally, and they were more than just an elector and resident taxpayer affected by the decision….We do not believe it can be seriously argued that an 8,100 acre industrial complex, including a coal gasification plant, chemical fertilizer plant, electrical power plant, coal mine, solid waste landfill, and facilities for manufacture and storage of hazardous, explosive, and odorous products, would not adversely affect the Kudrnas’ use and enjoyment of their respective properties located within 200 feet of the proposed complex.”

Rezoning decision.  The Council contended that the Board failed to correctly interpret and apply the Stark County Zoning Ordinance. The Court began this analysis by noting that although interpretation of an ordinance presents a question of law fully reviewable on appeal, the interpretation of a zoning ordinance by a governmental entity is a quasi-judicial act, and a reviewing court should give deference to the judgment and interpretation of the governing body rather than substitute its judgment for that of the enacting body.  The Council argued that Great Northern was required by the ordinance to submit all application materials necessary to apply for a land disturbance permit.  The Board disagreed.  The Court disagreed, as well.  The Board, construing its Zoning Ordinance in light of the facts presented in this case, concluded that the Zoning Ordinance allowed the Board to issue a conditional use permit for mining operations, subject to the requirement that Great Northern ultimately comply with another section of the ordinance and obtain a land disturbance permit before commencing any exploration, excavation, or mining activities on the property.  The Board viewed the granting of the conditional use permit as merely the first step in a lengthy and complex process, and its approval of the conditional use was contingent upon Great Northern complying with all of the enumerated special conditions imposed upon the conditional use permit.  The Court concluded that “this is a reasonable interpretation of the Zoning Ordinance, and we give deference to the Board’s interpretation and will not substitute our judgment for that of the Board.”

The district court decision was affirmed in all respects.

Conditional Uses/Special Uses, North Dakota courts, Rezoning, standing , , , ,
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