Posted by: Patricia Salkin | May 22, 2017

MN Appeals Court Finds Planning Commission Properly Exercised Its Discretion by Issuing CUP for Golf Course Redevelopment

Birch Bay purchased Birch Bay Golf Course and Resort, located on the shoreline of Agate Lake, planning to redevelop the golf course in order to create, in three phases, 170 recreational vehicle (RV) sites equipped with water, electrical, and sanitary sewer hookups to be used seasonally from May 1 to October 1. The county prepared an environmental assessment worksheet (EAW) that provided a detailed overview of the proposed project and its potential environmental impacts. The planning commission determined that an environmental impact statement (EIS) was not required. Birch Bay the applied for, and was granted, a CUP for the first phase of the project. Relators Agate Lake Association and Gull Chain of Lakes Association brought a challenge to respondent Cass County Planning Commission’s grant of a conditional-use permit (CUP) to respondent Birch Bay RV Resort, Inc., arguing that the planning commission abused its discretion because the evidence did not support its decision.

Relators alleged that the planning commission’s decision to grant the CUP was unreasonable, arbitrary, and capricious because it failed to consider the project’s effects on Gull Lake as required under subdivisions A, B, E, and F of Cass County, Minn., Land Use Ordinance (CCLUO) § 705.2. They further argued that the decision was arbitrary because the commission failed to address the project’s effect on the water quality and safety of Agate Lake, which the Minnesota Department of Natural Resources (DNR) identified as concerns with the project. However, the record indicated that the EAW was made available for comment by publication in local periodicals, placement on the county’s website, and distribution to interested parties and agencies. Following the comment period, Birch Bay prepared detailed responses to the comments it received and directed the Environmental Services Department (ESD) to obtain additional information from Birch Bay on thirteen matters of concern. A supplemental informational packet was then distributed to all written commenters. Based on its review of the entire record, including the supplemental information packet and the comments, the planning commission determined that an EIS was not required.

Additionally, the DNR suggested that the planning commission limit watercraft access to Agate Lake; restrict mooring; centralize swimming areas, docks, watercraft mooring, and launch ramps; and require preservation of the native buffer on Agate Lake. In response, the planning commission included seventeen findings and twenty-three conditions in Birch Bay’s CUP approval that addressed these concerns. Because the planning commission considered the evaluation criteria set out in its ordinances, the court held that the planning commission properly exercised its discretion by issuing the CUP to Birch Bay for phase one of its project.

Agate Lake Association v County of Cass Board of Commissioners, 2017 WL 2061969 (MN App. 5/15/2017)

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