Posted by: Patricia Salkin | August 13, 2016

MN Appeals Court Finds Denial of Conditional Use Permit for Pig Barn was not Arbitrary and Capricious

Appellant/relator John D. Perschbacher was a livestock producer who contracted to purchase land in an agricultural district in Freeborn County. Under Freeborn County’s zoning ordinance governing agricultural districts, “any agricultural building or structure for the housing of livestock when located outside of a farmyard” is a conditional use and requires a conditional-use permit (CUP) approved by respondent Freeborn County Board of Commissioners. On December 11, 2014, Perschbacher applied to the county for a CUP to construct on the land a barn capable of housing 2,490 swine. The planning commission considered Perschbacher’s CUP application during a public meeting on January 12, 2015. During the meeting, the county’s planning and zoning administrator presented information about neighbors near the proposed barn site, expected levels of annoyance from odors associated with the barn, and the possible use of trees as a windbreak to decrease annoyance levels. Respondent then voted on a resolution “to approve the Conditional Use Request,” and the resolution failed on a 2–3 vote. Perschbacher brought an action for writ of mandamus seeking to compel county board of commissioners to issue conditional use permit for the large swine barn, but the District Court denied the petition.

On appeal, Perschbacher argued that the requirement in subdivision 2(b) that “those voting against the motion state on the record the reasons why they oppose the request” means that the reasons must be stated “contemporaneously” with and “at the same meeting in which a governmental agency votes down a motion to approve a zoning request.” Thus, the respondent’s vote on February 3 together with the statement approved on February 17 could not constitute a denial of his CUP request, and respondent therefore failed to deny his request within the 120–day extended statutory period, which resulted in automatic approval of the request under subdivision 2(a). Subdivision 2(b) states that a failure to approve a request “shall constitute a denial of the request provided that those voting against the motion state on the record the reasons why they oppose the request.”

Here, respondent satisfied the second condition for a denial on February 17, when respondent’s members who voted against the resolution stated on the record the reasons why they opposed the resolution. Moreover, the reasons why respondent’s members opposed Perschbacher’s request were the odors expected to be caused by the proposed swine barn, and the impact that odors would have on neighbors’ enjoyment of their property. Because the board considered these facts, the court found that the board’s decision to deny Perschbacher’s request for a CUP had a rational basis and was not unreasonable, arbitrary, or capricious.

Perschbacher v Freeborn County Board of Commissioners, 2016 WL 4162776 (MN App. 8/8/2016)

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