David Vigstol, Relators v. Isanti County Board of Commissioners

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).

STATE OF MINNESOTA
IN COURT OF APPEALS
A13-2162

David Vigstol, et al.,
Relators,

vs.

Isanti County Board of Commissioners,
Respondent.

Filed December 8, 2014
Reversed and remanded
Larkin, Judge

Isanti County Board of Commissioners

Paula A. Callies, Callies Law, PLLC, Minneapolis, Minnesota (for relators)

Paul D. Reuvers, Nathan C. Midolo, Iverson Reuvers Condon, Bloomington, Minnesota
(for respondent)

Considered and decided by Hudson, Presiding Judge; Larkin, Judge; and

Stoneburner, Judge.


Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
 UNPUBLISHED OPINION

LARKIN, Judge

Relators challenge respondent county board of commissioners’ denial of their

request for a conditional use permit. Because the board’s decision was unreasonable, we

reverse and remand for respondent to grant the permit as proposed.

FACTS

In July 2013, Isanti County amended its zoning ordinance to allow “rural retail

tourism businesses” as conditional uses in “agriculture/residential” districts. Isanti

County, Minn., Zoning Ordinance (ICZO) § 6, subd. 3.22 (2013). The ordinance

describes “rural retail tourism businesses” as businesses that “attract travelers or visitors

to areas historically or traditionally used for agricultural purposes, which are generally

small-scale, low impact, and entertainment, recreation, and/or education focused.” Id.

To obtain a conditional use permit (CUP), including one for a rural retail tourism

business, a landowner must submit an application to the zoning administrator, and the

county planning commission holds a public hearing on the application and reports its

findings and recommendations to the board of county commissioners. ICZO § 18, subds.

1.1, 1.3, 2, 3 (2013). The board then holds “whatever public hearings it deems advisable”

and decides whether to grant or deny the CUP. Id., subd. 3.

Relators David and Susan Vigstol applied for a CUP for a rural retail tourism

business the day the zoning ordinance was amended. The Vigstols own about 20 acres of

land in North Branch. Their property is located on a county road in an

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agriculture/residential district. They have neighbors to the north, northwest, and west, a

county park to the south, and a campground nearby.

The Vigstols stated in their CUP application that they planned to open The

Meadow at Anderson Farm, “a country venue to host various groups of people for

wedding ceremonies & receptions, family reunions, [and] civic group gatherings.” The

venue would operate on the Vigstols’ property from mid-May to mid-October and

accommodate up to 250 guests per event. The Vigstols planned to install an antique barn

and construct an 85-car parking lot. Their proposed business hours were 11 a.m. to 8

p.m. on Sundays, Wednesdays, and Thursdays, and 11 a.m. to 11:30 p.m. on Fridays and

Saturdays, with the venue available for weddings during eight-hour periods on weekends.

On August 8, the Isanti County Planning Commission heard comments on the

Vigstols’ application. Six neighbors stated that they opposed the permit request based on

concerns regarding noise, traffic, parking, alcohol consumption, and litter, and one

neighbor presented a petition signed by 32 persons who shared those concerns. The

planning commission discussed “at length” whether the Vigstols’ proposal was “small

scale and/or low impact,” noting that it had “not heard of a way for this activity to be

mitigated for sound.” One commission member specified that he was concerned about

whether the property is adequately screened or separated “to prevent undue negative

impact to nearby properties,” whether the business will cause a “traffic hazard or undue

congestion,” and whether the business will “negatively impact the neighborhood by

intrusion of noise, glare, odor or other adverse effects.” The commission member stated

that “noise is definitely a concern” because “music will be amplified indoors and there

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has been no mitigation of this from the barn,” which “will not be closed up.” The

commission voted unanimously to table the Vigstols’ request until a later date so more

information could be provided.

The Vigstols submitted a revised CUP application. They lowered the number of

expected guests to 150, reduced the parking lot size to 50 cars, and limited their business

hours to appointments only, with events scheduled during eight-hour periods between

8 a.m. and 11 p.m. and no business on Sundays. To address noise and lighting concerns,

they stated that they would move the barn farther from property lines, insulate it, and

install heating and air conditioning. They said that they would turn down any music to a

“conversational level” by 10 p.m. and require all guests to leave before 11 p.m. All

lighting would be “down light . . . aimed away from neighbors” that would turn off

automatically at 11:30 p.m., and the parking lot would be screened with an “arborvitae

hedge.” They also planned to plant trees and build sheds to shield neighboring

properties.

The Vigstols stated that they would pursue renting the venue year-round to recover

the noise-control costs, although the primary season would still be May to October.

Referring to papers from the Arbor Day Foundation and the Minnesota Pollution Control

Agency, they explained how the trees and building materials they planned to use would

reduce the decibel level at their property line to between “bedroom noise” and “a quiet

forest.” They also submitted a “limited data set” based on their observations of cars that

passed their house during various periods. They estimated having 40 or 50 vehicles per

wedding and stated that this “is not likely to cause a traffic issue” because the vehicles

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“would not come or leave in a caravan,” all parking would be off-street, and traffic

directions would be provided. They also stated that they would “support requests for

beer and wine only” and hire staff “trained to recognize a person who has had too much

to drink,” as well as an off-duty police officer.

At the next planning commission hearing, David Vigstol advocated for the

amended application, and several neighbors voiced their opinions both for and against it.

The planning commission voted 5-3 to recommend approving the request with the

following conditions:

1. The hours of operation will be Monday –
Thursday 8:00a.m. – 7:00p.m. and Friday – Saturday
8:00a.m. – 11:00p.m. with the music ending by 10:00p.m.
with no Sundays.
2. This conditional use permit must be reviewed
yearly [and] can be modified.
3. One wedding event (wedding ceremony and/or
reception) per weekend; either Friday or Saturday with no
events on Sunday.
4. The light poles to be installed as described in
the plan submitted by Mr. Vigstol with the lights pointing
downwards from traffic and/or neighboring properties.
5. Must not have any outdoor music amplification.
6. Must follow the recommendations of the Isanti
County Highway Department.
7. No on street parking.
8. No paper lanterns and/or fireworks on site and
no celebratory honking.
9. Owner and/or family member must be on the
premises at all times during every event.
10. No mixed drinks and/or liquor; only beer or
wine.
11. Staff must be trained and an off duty contracted
police officer [must be] on site while liquor is being served.
12. The plantings will be a minimum of a row of 5’
Pine Trees with 30’ spacing and 15’ row separation to the row

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 of 5’ Spruce Trees with 15’ spacing for screening on the north
property line.
13. The barn and bathrooms must be built to year
round climate control with STC 40 minimum with windows
and doors that seal tight.
14. Must meet all building and septic codes.
15. Must meet all State and Local codes.
16. Up to 150 people total on site.
17. Must have class 5 or better for the parking lot
and driveway.
18. A portion of the house may be allowed to be
used for the wedding party to prepare for the ceremony on the
day of the ceremony.
19. No outside weddings that are [inherently] noise
generating.
20. Outdoor garbage cans must be covered to
control the debris.

The commission also made ten findings to support its recommendation, one of which is

that the “Highway Department will be requiring a turn lane so that this will not cause

traffic hazard or undue congestion.”

During the next few days, Isanti County commissioners received ten e-mails

regarding the Vigstols’ application. Eight opposed the request, one favored it, and one

from David Vigstol linked to local news stories about the antique barn the Vigstols had

purchased. The e-mails opposing the request described concerns about “the added noise,

traffic, and congestion this business will bring to our area,” the need to add a turn lane to

the county road, taxpayer money spent on enforcing the CUP, and diminished property

values. They also indicated the senders’ opinions that the Vigstols’ proposal does not

meet ordinance requirements, particularly the “small scale” and “low impact” standards.

Two of the e-mails referred to a petition with more than 60 signatures “from owners of 34

properties within one mile of [the Vigstols] that are totally against approval.” The e-mail

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in favor of the request was from the Vigstols’ “closest” neighbors, who live “directly

across the street” and stated that they “feel like there will be NO impact on [their] lives

with this business” and are “100% in favor of this proposal.”

At respondent Isanti County Board of Commissioners’ October 16 meeting, the

board heard comments about the Vigstols’ application from eight persons, including

David and Sue Vigstol. The comments were limited to one minute per person. The

board then discussed the Vigstols’ request. While reviewing the planning commission’s

conditions, the county administrator stated that he had recently spoken to Richard

Heilman, the county highway engineer. He stated that Heilman “looked at [the Vigstols’

property] this week” and “doesn’t feel that the right-turn lane is required for 50 cars.” He

added, “If it would grow, [Heilman] would look at it again. But at this point he’s saying

that isn’t a requirement. So one of the findings referred to that. We’ll have to change

that.” Later, when reciting the planning commission’s finding that the highway

department will require a turn lane, the speaker stated, “[T]his is where we need to

change that. They will meet Highway Department regulations regarding this. So it will

not cause a traffic hazard or undo congestion.”

County Board Chairperson Susan Morris, who was also a member of the planning

commission, then reviewed the background of the Vigstols’ CUP request. She stated that

she had spoken to a real estate agent and asked whether the Vigstols’ proposal would

decrease the neighbors’ property values. She said that the real estate agent “laughed” and

responded “absolutely not.” Morris added, “[T]hey have done multiple studies that this

type of venue and churches [do] not affect the value of people’s homes. There is no

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proof, is what the studies have said.” Morris expressed her concern that the CUP could

pass to anyone who bought the Vigstols’ property, and the board discussed how including

an annual-review condition would resolve that issue. She also clarified that the Vigstols

would be allowed to host a rehearsal dinner the night before a wedding, despite the limit

of one “wedding event” per weekend.

Morris addressed the audience and said, “I promise you that going forward, we

will put setbacks in the ordinance for businesses that will have a higher . . . impact. We

will revisit the ordinance. We can’t change the rules now on somebody who [has]

already applied though.” She added, “Our ordinance does allow this and I know that

Dave and Sue will do an excellent job running this business.” She then moved to

approve the Vigstols’ request with the planning commission’s findings.

The commissioners discussed the proposed CUP and voted 4-1 against Morris’s

motion to approve it. Later, another commission member moved to deny the Vigstols’

proposed CUP with the following proposed findings:

[T]he impacts on Anderson Park on after hours. Also
it’s not, in my view, a small scale operation. That anticipated
150 people and with the ordinance the way it’s written, I
don’t believe that’s small scale.
Also the site is a little bit small, a little bit for the type
of operation they are going to have, and I think that’s a
negative impact on the safety and the health of the area.
There is no setback with it. So it would be right up on that
main road. Also that would be the traffic safety issue.
And now there is also question about whether or not a
turn lane has to be put in.

The motion to deny carried with four votes in its favor.

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 The board sent the Vigstols a letter informing them of its decision. The letter

included the following findings:

1. The proposal will likely have a negative impact
on Anderson Park, in light of the fact that the proposed
facility is adjacent to the park, and the fact that the proposed
project contemplates evening events.
2. The proposal is not a small-scale, low-impact
operation. The ordinance only permits small-scale, low-
impact operations that will not, for example, negatively
impact their neighborhood by intrusion of noise or through
other adverse effects.
3. The parcel where this operation is proposed is
too small for the type of operation proposed. Additional
space would potentially have limited the impact of the noise
and activity on surrounding neighbors.
4. The proposed setbacks of the primary facilities
described in the proposal from the surrounding property lines
were not adequate in light of the level of activity
contemplated.
5. There is a possibility that increased traffic
attracted to the site would create a hazard.

This certiorari appeal follows.

DECISION

A county zoning authority’s CUP decision is quasi-judicial and reviewable by writ

of certiorari. Big Lake Ass’n v. St. Louis Cnty. Planning Comm’n, 761 N.W.2d 487, 490

(Minn. 2009). Appellate review is limited to the “facts and circumstances developed

before” the body that made the decision. Id. at 491 (quotation omitted). Caselaw

expresses the standard of review for zoning matters in various ways: “Is there a

‘reasonable basis’ for the decision? or is the decision ‘unreasonable, arbitrary, or

capricious’? or is the decision ‘reasonably debatable’?” Honn v. City of Coon Rapids,

313 N.W.2d 409, 417 (Minn. 1981). But the question is always “whether the zoning

9
authority’s action was reasonable.” Id. at 416-17. Our review is deferential because

“counties have wide latitude in making decisions about special use permits.” Schwardt v.

Cnty. of Watonwan, 656 N.W.2d 383, 386 (Minn. 2003). But a landowner whose permit

request was denied “faces a lighter burden than if he were challenging a conditional use

permit approval.” Yang v. Cnty. of Carver, 660 N.W.2d 828, 832 (Minn. App. 2003).

The zoning authority “must articulate the reasons for its ultimate decision, with

specific reference to relevant provisions of its zoning ordinance.” Earthburners, Inc. v.

Cnty. of Carlton, 513 N.W.2d 460, 463 (Minn. 1994). If it chooses to deny a CUP

request, it “must articulate [its] specific basis for the denial, i.e., an explanation of the

applicant’s failure to satisfy the ordinance criteria.” Id. “Along with a clearly articulated

rationale for its decision, specific reference to the local ordinance is essential to facilitate

effective judicial review.” Id.

When reasons are given for a CUP decision, we “assess the legal sufficiency of the

reasons” and “determine whether, if legally sufficient, they had a factual basis.” C. R.

Invs., Inc. v. Vill. of Shoreview, 304 N.W.2d 320, 325 (Minn. 1981). We will uphold a

decision if the zoning authority’s findings are “supported by the evidence and provide[] a

rational basis for the municipal decision.” Swanson v. City of Bloomington, 421 N.W.2d

307, 314 (Minn. 1988). A permit denial is not unreasonable “when at least one of the

reasons given for the denial satisfies the rational basis test.” Trisko v. City of Waite Park,

566 N.W.2d 349, 352 (Minn. App. 1997), review denied (Minn. Sept. 25, 1997). The

party challenging the decision has the burden of persuasion. Hubbard Broad., Inc. v. City

of Afton, 323 N.W.2d 757, 763 (Minn. 1982).

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 The Isanti County Zoning Ordinance sets forth two requirements for a rural retail

tourism business. ICZO § 14, subd. 12.B (2013). First, the business must obtain a CUP.

Id., subd. 12.B.1. Before a CUP is issued, the planning commission must find:

1. That the conditional use will not be injurious to
the use and enjoyment of other property in the immediate
vicinity for the purpose already permitted, nor substantially
diminish and impair property values within the immediate
vicinity.
2. That the establishment of the conditional use
will not impede the normal and orderly development and
improvement of surrounding vacant property for uses
predominant in the area.
3. That adequate utilities, access roads, drainage
and other necessary facilities have been or are being
provided.
4. That adequate measures have been or will be
taken to provide sufficient off-street parking and loading
space to serve the proposed use.
5. That adequate measures have been or will be
taken to prevent or control offensive odors, fumes, dust,
noise, and vibration so that none of these will constitute a
nuisance, and to control lighted signs and other lights in such
a manner that no disturbance to neighboring properties will
result.

ICZO § 18, subd. 4 (2013). The second requirement is that the business must “have a

unique and demonstrable relationship with Isanti County or its region, and its history,

culture, traditions, arts, crafts, lore, natural resources, or other features and amenities, in

accordance with the above stated purposes.” ICZO § 14, subd. 12.B.2.

The ordinance identifies several “allowed uses” for rural retail tourism businesses,

including “single family residential rental properties for retreats, crafting, weddings,

receptions, bed & breakfasts, wineries, craft breweries and distilleries, small-scale, low

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impact special events or music festivals.” Id., subd. 12.C (2013). “Small-scale” and

“low-impact” refer to land uses that:

1. Do not create an excessive demand upon
existing services or amenities;
2. Are screened or able to be screened adequately,
or are sufficiently separated from adjacent development or
land, to prevent undue negative impact to nearby properties;
3. Will not have an appearance that is inconsistent
or incompatible with the surrounding area;
4. Will not cause traffic hazard or undue
congestion; [and]
5. Will not negatively impact the neighborhood by
intrusion of noise, glare, odor or other adverse effects.

Id., subd. 12.D (2013).

The Vigstols argue that the board’s decision “was arbitrary, capricious, and

unreasonable” because their proposal met the ordinance requirements, the board

impermissibly relied on general public opposition, and the board’s reasons for its denial

are legally insufficient and not supported by the record. We consider each of the board’s

five findings in turn.

The board’s first finding is that the Vigstols’ “proposal will likely have a negative

impact on Anderson Park, in light of the fact that the proposed facility is adjacent to the

park, and the fact that the proposed project contemplates evening events.” The board did

not specify the ordinance provision to which this finding applies, but both the CUP and

the rural retail tourism business standards prohibit uses that negatively impact the

surrounding land. ICZO §§ 14, subd. 12.D; 18, subd. 4.1. This finding therefore has a

legal basis, but it must have factual support as well.

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 The record establishes that Anderson Park is adjacent to the Vigstols’ southern

property line and is “set up for hiking” and other wilderness activities. But there is no

explanation of how granting the Vigstols’ CUP request would affect the park. The park

director said that his “only concern” is “the after hours unintended use of the park.” A

neighbor stated that the Vigstols’ property is “not screened at all” from the park. One

commission member “[thought] that [granting the request] would have an effect on” the

park and noted the absence of comments from the Friends of Anderson Park. These

statements are merely speculative concerns, not based on any specific facts. See C. R.

Invs., Inc., 304 N.W.2d at 325 (“[W]e are required to conclude that [the commission’s]

stated reasons do not have factual support in the vague reservations expressed by either

the single-family owners or the commission members.”). The Vigstols’ proposal and the

planning commission’s conditions specifically addressed concerns about excessive noise

and inadequate screening. The board did not find these plans inadequate; it simply stated

that the park would “likely” be negatively impacted because the Vigstols’ proposal

“contemplates evening events” without offering any further explanation. Because there is

an insufficient factual basis, the board’s first finding does not support denial of the CUP.

The board’s second finding is that the Vigstols’ proposal “is not a small-scale,

low-impact operation.” The board stated that “[t]he ordinance only permits small-scale,

low-impact operations that will not, for example, negatively impact their neighborhood

by intrusion of noise or other adverse effects.” “Small-scale” and “low-impact” are

explicit requirements for rural retail tourism businesses. ICZO § 14, subd. 12.D.

Accordingly, this could be a legally sufficient reason to deny the request. But the board

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did not cite or identify any factual support for its conclusion. It simply recited one of the

five small-scale, low-impact requirements. See ICZO § 14, subd. 12.D.5. Because the

board did not explain why it found that the Vigstols’ proposal is not small scale or low

impact, this finding is inadequate. See Honn, 313 N.W.2d at 416 (stating that the reasons

for a decision must be expressed in “more than just a conclusory fashion”).

Many of the e-mails to commissioners offered neighbors’ opinions that the

Vigstols’ proposal is not small scale or low impact. Opponents who spoke at the hearing

expressed similar views. “Although neighborhood sentiment may be taken into

consideration in any zoning decision, it may not constitute the sole basis for granting or

denying a given permit.” Nw. Coll. v. City of Arden Hills, 281 N.W.2d 865, 869 (Minn.

1979). “[T]he simple fact that community members oppose a landowner using his land

for a particular purpose is not a legally sufficient reason for denying a special-use

permit.” Barton Contracting Co., Inc. v. City of Afton, 268 N.W.2d 712, 718 (Minn.

1978). Accordingly, even though some neighbors clearly opposed the Vigstols’ request

and offered their opinions that the proposal does not meet ordinance requirements, their

statements cannot support the board’s decision because they are conclusory and not based

on concrete information. See C. R. Invs., Inc., 304 N.W.2d at 325 (“[V]ague reservations

expressed by either the single-family owners or the commission members” cannot

factually support stated reasons for denying a permit.); Yang, 660 N.W.2d at 833 (“A city

may consider neighborhood opposition only if based on concrete information.”).

Notably, one small-scale and low-impact requirement is that the use will not cause

“undue negative impact to nearby properties.” ICZO § 14, subd. 12.D.2. Two neighbors

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testified that they had spoken to realtors who said that their property values would go

down 10 to 15% if the Vigstols opened their venue. Despite Chairperson Morris’s

statement that another real estate agent had said property values would not be affected,

the neighbors’ statements indicate a possible “undue negative impact to nearby

properties.” But the board did not cite decreased property values as a reason to deny the

Vigstols’ proposed CUP.

The board’s third finding is that the “parcel where this operation is proposed is too

small for the type of operation proposed. Additional space would potentially have

limited the impact of noise and activity on surrounding neighbors.” Another small-scale

and low-impact requirement is that the use “[w]ill not negatively impact the

neighborhood by intrusion of noise, glare, odor or other adverse effects.” ICZO § 14,

subd. 12.D.5. But there are no specific size requirements for rural retail tourism

businesses, and the planning commission’s conditions required the Vigstols to meet all

building, septic, state, and local codes. Furthermore, neither the board nor the record

explains why the size of the Vigstols’ property would foster intrusive noise levels. The

Vigstols presented a detailed plan showing how landscaping and buildings would reduce

the decibel level of events. Except for one e-mail from a woman who stated that she can

hear her neighbor “having a conversation when he is inside his polebarn and he is over 10

acres away through 2 lines of mature trees,” no one refuted the viability of the Vigstols’

noise-reduction plans with concrete information. Thus, the board’s third finding lacks

both a legal and factual basis.

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 The board’s fourth finding is that the “setbacks of the primary facilities described

in the proposal from the surrounding property lines were not adequate in light of the level

of activity contemplated.” As with the board’s concerns about the parcel size, this

finding lacks legal support. The rural retail tourism business provisions contain no

setback requirements, the Vigstols would be required to meet all existing building codes

as a condition of receiving the permit, and the record does not contain any evidence that

the Vigstols’ proposal would violate any existing setback requirements. Accordingly, the

board’s finding that the Vigstols’ setbacks “were not adequate” lacks legal and factual

support.

The board’s fifth finding is that “[t]here is a possibility that increased traffic

attracted to the site would create a hazard.” Traffic hazards and congestion are valid

reasons to deny a CUP request. ICZO § 14, subd. 12.D.4. But the board did not find that

the Vigstols’ proposal would actually affect traffic; it merely stated that a “possibility”

exists.

A zoning authority “must have some basis for finding that a traffic problem would

exist.” Minnetonka Congregation of Jehovah’s Witnesses, Inc. v. Svee, 303 Minn. 79, 85,

226 N.W.2d 306, 309 (1975). As the supreme court stated in a similar context, “It is self-

evident that any church will cause heavier vehicular traffic, but for that matter, so would

residential construction. However, that is far from the creation of a traffic hazard.” Id.;

see also Yang, 660 N.W.2d at 833 (rejecting board’s traffic estimates because they were

“speculative predictions” and “not substantiated by independent analysis or reliable facts

in the record”). Here, all the concerns about traffic were speculative. The county

16
administrator indicated that the highway department would not require a turn lane for 50

cars, the high end of the Vigstols’ estimated number of vehicles coming to the venue.

The commission member who moved to deny the Vigstols’ request also recognized this

change by stating that “there is a question about whether or not a turn lane has to be put

in.” In sum, the board’s fifth finding is inadequate to support the CUP denial.

Because the board’s reasons for denying the proposed CUP lack a sufficient legal

and factual basis, the decision was unreasonable. We therefore reverse. “[W]hen a

governmental body denies a permit with such insufficient evidence that the decision is

arbitrary and capricious, the court should order issuance of the permit.” In re

Livingwood, 594 N.W.2d 889, 895 (Minn. 1999). The Vigstols ask us to direct the

county board to approve their original proposed CUP. But the board never considered

the Vigstols’ original proposal. The only decision that is before this court for review is

the board’s denial of the Vigstols’ amended CUP proposal, which includes the 20

conditions imposed by the planning commission. Accordingly, we remand for the board

of commissioners to grant the Vigstols’ amended CUP proposal with the conditions

imposed by the planning commission.

Reversed and remanded.

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