MN county ordinance required formal adoption of planning commission findings on the record at a meeting

by Hannah Dankbar

Bio Wood Processing, LLC v. Rice County Board of Commissioners
Minnesota Court of Appeals, April 13, 2015

Bio Wood Processing recycles wood products into bedding for animals and mulch. Its facility is located in Rice County, near the City of Faribault. The area of the facility is zoned as urban-reserve, and any agriculture businesses must obtain a conditional use permit (CUP). Bio Wood received a CUP in 2011 that restricted the hours they could grind wood.

In 2013 Bio Wood asked to amend its CUP; this included an expansion of its hours of operation. The planning commission allowed longer wood grinding hours, but reduced the total hours of operation. In 2014 Bio Wood applied for another amendment that asked for a new set of conditions that did not include any restrictions on hours of operation. After hearing from company representative and community members who live near the facility, the planning commission took a voice vote and decided to recommend denial of the application.

Between May 1 and 13, 2014 a written document entitled “Findings of Fact” was written with notes from the Planning Commission meeting to pass along to the Board of Commissioners. The Board of Commissioners followed the recommendation and denied the application. Bio Woods appealed.

Bio Woods claimed that the county erred in judgment in multiple ways; (1) the planning commission failed to make findings of fact on the record, (2) the board failed to engage in reasoned decision-making, (3) the board’s findings are not supported by the factual record and (4) the board treated applicants who are similarly situated differently.

Bio Woods claimed that the Planning Commission did not meet the requirements of the county ordinance, which states in part that “the report from the planning commission to the County Board shall take the form of formal findings on the record.” The county argued that nothing in the ordinance required them to write the findings themselves or read them out loud on the record. A notary public did certify a portion of a transcript, but not the section that mentions findings of fact. The court found the plain meaning of the ordinance required the commission to make formal findings in the course of a public meeting, either by stating them orally or by approving a previously prepared document that includes written findings. The court determined that the county did not satisfy the plain meaning of the county ordinance because county staff prepared written findings from a meeting after the meeting happened and submitted the written findings to the County Board without the Planning Commission ever formally adopting them  “on the record.”

The court reversed the Board of Commissioner’s decision to deny the CUP. The matter went back to the county to make valid findings in this case.

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.

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.

Court affirms decision to approve renovation of historic hotel

by Victoria Heldt

Frederic E. Mohs, et al. v. City of Madison
(Wisconsin Court of Appeals, October 27, 2011)

In this case, Mohs, among other landowners, challenged the City of Madison Common Council’s decision to grant a Certificate of Appropriateness to Landmark X.  The Edgewater Hotel, owned by the Faulkner family, was in need of renovation in order to be “economically sustainable.”  Landmark X, a development company, planned to purchase the property for redevelopment.  Since the building was located within an historic district, Landmark X needed a Certificate of Appropriateness from the City’s Landmarks Commission.  The Commission denied the certificate, but the City’s Common Council overruled that decision within its jurisdiction and granted the certificate.  The case went to the circuit court, which affirmed the Council’s decision.

The Court begins its analysis by noting that, in a certiorari review, the appellants (in this case the landowners) have the burden to show whether 1) the governmental body’s decision was within its jurisdiction; 2) the body acted according to law; 3) the decision was arbitrary or oppressive; and 4) the evidence of record substantiates its decision.  The Court found that the landowners failed to meet the burden.  They based most of their argument on the governing ordinance which read:

“The Council may, by favorable vote of two-thirds (2/3) of its members, based on the standards contained in this ordinance, reverse…the decision of the Landmarks Commission if, after balancing the interest of the public in preserving the subject property and the interest of the owner in using it for his or her own purposes, the Council finds that, owing to special conditions pertaining to the specific piece of property, failure to grant the Certificate of Appropriateness…will cause serious hardship for the owner, provided that any self-created hardship shall not be a basis for reversal…”

The Landowners first took issue with the word “owner” that appears within the ordinance.  They argued that since Landmark X did not own the property, it could not experience any hardship from the withholding of a Certificate.  The Court rejected this argument, concluding that the existing condition of the building (which the granting of the Certificate hopes to alleviate) presents a hardship for anyone who owns or intends to own the building.

Next, the landowners turned to the ordinance’s requirement that the governing body balance the public and private interest in the property.  They claimed that the Council failed to address this within their ruling.  Landmark X supported the claim with the ruling in Lamar Central Outdoor, Inc. v. Board of Zoning Appeals of Milwaukee in which the Court reversed a municipality’s decision because it lacked an explanation of reasoning.  Here, the Court found that the Lamar claim was forfeited because it was not preserved in trial court.  The claim appeared for the first time in a reply brief, which is disallowed.  The Court clarified that, even if it had reviewed the Lamar claim, it would have been rejected.  It found that comments made by a Council-member expressed that the renovation would serve both public and private interests in the dilapidated building.  These comments constituted a showing that the Council analyzed the situation in light of both public and private interests.

Under the umbrella claim that the Council failed to make required findings Landmark X made several more arguments, all of which the Court rejected.  They argued that the Council failed to meet the “special condition” requirement of the ordinance.  They interpreted the ordinance to mean that the hardships endured by the owner must be unique and, in this case, the conditions were not specific to Edgewater.  They purported that this situation could be similar to that faced by other building and hotel owners.  The Court rejected this argument due to lack of analysis and support.  In the remainder of the opinion, the Court dismissed three more minor claims due to a lack of support and a failure to present a logical argument.  The trial court’s decision was affirmed.

Board of Adjustment established record sufficient to support denial of conditional use permit

by Gary Taylor

A-Line Iron & Metals, Inc. v. City of Cedar Rapids Zoning Board of Adjustment
(Iowa Court of Appeals, November 10, 2010)

A-Line Iron & Metals, Inc. filed a petition for a conditional use permit with the city of Cedar Rapids, seeking to operate a business to recycle scrap metal and iron (meeting the definition of “salvage yard” under the city’s zoning code).  The location was zoned I-2, “General Industrial Zone.” Salvage yards seeking to locate in I-2 must receive a conditional use permit, and the request must go through the city planning commission for review and recommendation prior to being heard by the zoning board of adjustment (ZBA).
The city’s Community Development department prepared a staff report for the planning commission recommending that the petition could be approved if certain conditions were fulfilled. The report found the requested conditional use was in accord with the future land use designation for the site. The planning commission recommended approval, subject to certain conditions.

Prior to the ZBA hearing, twenty-seven written complaints from nearby property owners were filed with the ZBA.  These written complaints, and the complaints voiced at the hearing, generally revolved around concerns over noise and increased truck traffic.  The attorney for a nearby radio station pointed out that on the future land use map the property was designated “commercial/industrial,” and salvage yards were not permitted in this category.  When asked about this issue at the ZBA hearing the city planner acknowledged the proposed use was not in accord with the future land use map, but expressed the opinion that “when the future land use map was drafted it was an oversight by the technical committee as it should have been shown as general industrial because that’s exactly what the property is for.”

The ZBA denied the conditional use permit.  No written findings of fact were filed by the ZBA; however, extensive minutes were recorded and approved.  In the minutes was a nearly-verbatim comment by the vice chair of the ZBA:

I . . . welcome new employees and new businesses to Cedar Rapids. This is very complicated and a lot of objectors so I went to the book, there is no question that in this district you have the right to apply for a conditional use of a salvage yard . . . . However, I would go to what I would call the three Cs. As I go back into the book here and look at the three Cs it was pointed out that I would just call them consistency, or consistent character, and compatible and as I look at this and as much as I would like to see a new business and new employees, I would say in my opinion we don’t have consistency with the land use. We are out of character for the neighborhood and being out of character it lacks the compatibility that I would like see . . . .  

A-Line filed a petition with the district court.  The district court found the minutes, the transcript of the hearing, and the documents presented at the hearing provided sufficient record to review the ZBA decision.  The district court found the reference to the “three C’s of consistency, character, and compatibility” were clearly a reference to the section of the city’s municipal code that sets forth criteria for approving conditional use permits.  The court determined that the ZBA had considered each of the standards in the code, even though each standard was not specifically discussed.  The court concluded there was substantial evidence in the record to support the ZBA decision.  A-Line appealed the district court decision to the court of appeals.

The court of appeals began by reciting the following principles found in Iowa caselaw regarding the need for ZBAs to develop adequate records of their proceedings:

  • Boards of adjustment shall make written findings of fact on all issues presented in any adjudicatory proceeding.
  • It is sufficient if a board substantially complies with this requirement.
  • There is substantial compliance if the rule has been followed “sufficiently so as to carry out the intent for which it was adopted,” which is “to enable a reviewing court to determine with reasonable certainty the factual basis and legal principles upon which the board acted.”
  • The reviewing court may determine substantial compliance by considering the board’s decision in the context of the meeting where the vote was taken as well as the views expressed by board members during the meeting.

The court of appeals concluded that the ZBA’s findings were sufficiently recorded so as to permit a court to review those findings. The minutes of the meeting and the transcript from the meeting clearly showed the ZBA denied the petition because the intended use of the property was not consistent with the use of nearby property, did not match the character of the neighborhood, and was not compatible with surrounding property. After the city planner advised the ZBA that the conditional use was not consistent with the future land use map, albeit due to an oversight, the vice chair of the ZBA commented that “in my opinion we don’t have consistency with the land use . . . are out of character for the neighborhood, and . . . it lacks compatibility.” The ZBA then proceeded to vote to deny A-Line’s conditional use application.

A-Line asserted the record did not support the denial because it showed that the ZBA addressed only three of the seven standards required for granting a conditional use permit.  The court of appeals pointed out that under the city’s code a conditional use permit can only be granted if all seven of the standards are met, and concluded that the ZBA considered the standards sufficiently to determine that three (those addressing consistency, character, and compatibility) were not met. Thus, addressing the other four standards would be unnecessary.

Finally, A-Line contended that the objectors raised only “generalized, unsubstantiated and speculative concerns that could not rise to the level of substantial evidence.” Noting that expert testimony is generally not required, and a ZBA may rely on anecdotal reports and “commonsense inferences drawn from evidence relating to other issues such as use and enjoyment, crime safety, welfare, and aesthetics to make a judgment,” the court of appeals concluded that substantial evidence existed to support the conclusion that the proposed use would not be consistent with the intent and purpose of the future land use policy plan.





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