Posted by: Patricia Salkin | December 2, 2015

MN Appeals Court Denies Motion to Supplement Record in Appeal of Denied Conditional Use Permit Finding no Due Process Violation

Relator Bio Wood Processing, LLC, recycles wood products into animal bedding and mulch at a facility in located in an urban-reserve zoning district in which Bio Wood’s business is a conditional use under Rice County’s zoning ordinance. In 2011, Bio Wood was granted a conditional-use permit (CUP) that allowed Bio Wood to grind wood materials between 8:00 a.m. and 5:00 p.m., Monday through Friday, and between 8:00 a.m. and 12:00 p.m. on Saturdays. In 2013, an amended CUP was granted expanding these hours. Bio Wood then applied for a second amended CUP, seeking to remove all restrictions on its hours of operation; however, this application was denied. Bio Wood appealed by writ of certiorari, and the court reversed and remanded the board’s decision to deny the CUP application because the planning commission never “formally adopted the findings on the record.” On remand the planning commission denied Bio Wood’s request to reopen the record to permit evidence of recent noise-level testing and increased need for animal bedding, and then denied the permit. Bio Wood appealed and moved to supplement the record.

Bio Wood first challenged the board’s refusal to open the record on remand as a violation of its procedural due-process rights. Although changes in circumstances would be appropriately considered had Bio Wood submitted a new application for an amended CUP, it was not relevant to the application at issue in this case since the reversal was due to a procedural defect. The court therefore concluded that the decision not to reopen the record on remand did not violate Bio Wood’s procedural due-process rights because it had a full opportunity to be heard in the original proceedings. Bio Wood next argued that the board’s denial of its application was arbitrary and capricious because the board failed to engage in reasoned decision-making on remand. Here, however, the board’s original denial of the application for an unrestricted CUP was reached after a public hearing and consideration of the planning commission’s recommendation. Moreover, the planning commission transcript showed that it considered each of the topics related to the findings it eventually made on the record: the concern about nighttime noise, the best interests of the community in restricting nighttime noise, the incompatibility of unrestricted use with the uses of surrounding land, the negative effect that 24/7 use would have on a business, and the necessity of restricting hours of operation to protect public health and safety. The motion to supplement the record was therefore denied.

Bio Wood Processing, LLC v Rice County Board of Commissioners, 2015 WL 7202504 (MN App. 11/16/2015)

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