Opinion
No. C3-02-2155.
Filed: July 1, 2003.
Appeal from the District Court, Stearns County, File No. C54015155.
John R. Koch, Reichert, Wenner, Koch Provinzino, P.A., (for respondents)
Jay T. Squires, Ratwik, Roszak Maloney, P.A., (for appellant)
Considered and decided by Toussaint, Chief Judge, Stoneburner, Judge, and Minge, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
On appeal from the district court's reversal of the county's denial of landowners' permit application, the county argues that under SuperAmerica Group, Inc. v. City of Little Canada, 539 N.W.2d 264 (Minn.App. 1995), review denied (Minn. Jan. 5, 1996), the county board may rely on common knowledge and experience to deny a permit application and that the record contains sufficient reasons for denying the application. Because the record lacks evidence supporting the denial of the application and because the reasons used to deny the application were inadequate, we affirm the district court.
FACTS
Respondents Charles and Marilyn Pangier own waterfront property in Stearns County. They began to build a boat ramp and retaining walls without obtaining a permit required by the county. The county told the Pangiers to stop work on the project until they obtained a permit. Although the Pangiers applied for the permit, they did not stop work and they completed the bulk of their project while the county was processing the permit application.
The county's review panel inspected the Pangiers' property. At their next meeting, the review panel, without making findings, unanimously denied the Pangiers' permit application. The Pangiers appealed to the board of adjustment, which remanded the matter to the review panel for findings explaining the denial. On remand, the review panel made ten findings. The board then affirmed the denial and the Pangiers appealed to district court. The district court found that the record does not support the findings, concluded that the decision to deny the application was arbitrary and capricious, and directed the county to issue a permit for the Pangiers' project. The county appeals.
DECISION
Generally,
[l]and use decisions are entitled to great deference and will be disturbed on appeal only in instances where the city's decision has no rational basis. In a zoning action, we review directly the proceedings before the zoning authority, not the trial court's findings. Where the municipal proceedings are fair and complete, review is on the record before the municipal authority[].
There is no allegation here that the proceedings before the review panel or board of adjustment were unfair or incomplete.
SuperAmerica Group, Inc. v. City of Little Canada, 539 N.W.2d 264, 266 (Minn.App. 1995) (citations omitted), review denied (Minn. Jan. 5, 1996). The decision will be upheld unless it is unreasonable, arbitrary or capricious. Trisko v. City of Waite Park, 566 N.W.2d 349, 352 (Minn.App. 1997), review denied (Minn. Sep. 25, 1997). Review is limited to the legal sufficiency and the factual basis for the reasons stated by the zoning body in denying the permit. Id. A permit application may be denied based on a single legally sufficient reason. Id.
The county argues that three of the review panel's findings are legally sufficient to support the permit denial: (1) the boat ramp increased the impervious surface coverage of the lot; (2) the watershed board and DNR did not support approval; and (3) other reasonable alternatives were available.
The remaining seven findings deal primarily with the Pangiers' failure to obtain a permit prior to beginning the project and failure to stop work on the project despite "stop work orders."
1. Increase in impervious surface
The county argues that the finding that the project increased impervious surface area of the Pangiers' lot is based on the review panel's inspection of the property. No explanation of what the review panel saw when they visited the site is in the record. In rejecting the determination that the boat ramp increased the impervious surface area of Pangiers' lot, the district court stated:
The Board submitted no study, investigation, expert testimony, or other evidence to the Court to support its claim that a surface covered with Class-5 gravel is impervious to water.
The county argues that the professional expertise of the members of the review panel and the holding in SuperAmerica combine to eliminate the need for evidence regarding the absorption characteristics of the boat ramp material, which the review panel apparently concluded was class-5 gravel. There are at least two problems with this argument.
The county also cites unpublished opinions to support its argument on this point. Unpublished opinions are of limited value in deciding an appeal. See Minn. Stat. § 480A.08, subd. 3(c) (2002) (stating "[u]npublished opinions of the court of appeals are not precedential") (emphasis added); Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800-01 (Minn.App. 1993) (stating dangers of mis-citation and unfairness associated with use of unpublished opinions and that while persuasive, "[t]he legislature has unequivocally provided that unpublished opinions are not precedential"). Also, the unpublished opinions are distinguishable in the same manner as SuperAmerica.
First, SuperAmerica is factually distinguishable because it involved a rejection of expert opinions based on non-expert testimony and other evidence submitted to the decision maker. SuperAmerica, 539 N.W.2d at 267-68. Here, no evidence was submitted regarding the absorption tendencies of any type of crushed rock (class-5 gravel or otherwise) and the review panel's decision was apparently based its own unexplained knowledge of the materials used and the absorption capacity of class-5 gravel, rather than evidence submitted to the review panel. Absent at least some evidence in the record to support the panel's assertion regarding the absorption capacity of class-5 gravel, the court is not bound by the panel's factual assertion on that subject. Cf. LaCourse v. City of St. Paul, 294 Minn. 338, 343, 200 N.W.2d 905, 908 (1972) (stating, in context of land owners' attempt to invalidate rezoning decision, that "[w]e do not agree that the court is bound by the city council's recitation of the facts where there is no evidence to support its conclusions.").
Second, the record is unclear regarding the extent to which the boat ramp was built with class-5 gravel. At the second hearing before the board, Pangiers' counsel told the board that
it would seem to me basically that what we have here is gravel and class five that they were not going to speed and flow with water down hill, that this was going to absorb water in the same way the natural turf would do[.]
(Emphasis added). Deferring to the review panel's expertise regarding the absorption capacity of the class-5 gravel ignores the fact that the at least some of the boat ramp apparently did not involve class-5 gravel.
2. Watershed board and DNR failure to approve project
The review panel found that the Department of Natural Resources and the watershed board "are not in favor of the project." But the evidence regarding the DNR is a letter from a hydrologist which states, among other things, that
I explained [to Pangiers that] I would wait until the [review panel] took action on [the] application, as to whether or not [Pangiers] would have to remove the lower portion of the ramp.
That the DNR was going to wait until after the review panel made its decision before addressing the necessity of removing part of the boat ramp shows that, at the time of the letter, the DNR had not made a decision regarding the propriety of the ramp. Although the statement that the DNR was not in favor of the boat ramp is technically correct (because the DNR had not then made a decision), a finding that the DNR was against the boat ramp, was (at best) premature.
And evidence regarding the watershed board consists of an email note beginning:
As president of the Sauk River Chain of Lakes and a manager on the Sauk River Watershed Board, I would encourage the appeal of [Pangiers] be denied.
While the note shows that its author is president of the watershed board and is personally against granting the permit, it does not state that the author is speaking on behalf of the watershed board. Any doubt that the author is not speaking on behalf of the watershed board is removed by the author's subsequent statement that "I have requested [that] the watershed technical staff review [Pangiers'] property and also send a letter addressing this subject." If the watershed technical staff had yet to review the property, that board lacked the information upon which it could, as a body, make a final decision regarding whether to oppose Pangiers' application. On this limited record, any assertion regarding the watershed board's position was also premature.
3. Reasonable alternatives
The review panel also denied Pangiers' application based on the asserted existence of "other alternatives" for access of the Pangiers' boat to the water, such as an electronic boatlift and assistance from others getting the boat on a trailer (presumably for launching the boat at a public access). The record shows Mr. Pangier (1) has significant medical problems affecting his mobility among other things, is "on 100% Social Security disability[, and was] just diagnosed with Parkinson's disease," and (2) told the review panel both that his disabilities preclude him from moving a boat lift in and out of the water and that, because he is on disability income, he lacks the financial ability to hire someone to do that for him. The record does not support the finding that a boatlift or the hiring of others to move the boat, are, in this case, viable options for the Pangiers.