(dissenting).
I respectfully dissent from the majority decision.
The decision of the majority of the court does not conform to the requirements necessary for denial by a municipality of a request for a “special use” permit set forth clearly in Zylka v. City of Crystal, 283 Minn. 192, 167 N.W.2d 45 (1969).
The denial of Barton’s request for a “special use” permit, to be a proper exercise of the city of Afton’s authority, must conform to the following language expressed in Zylka:
“* * * It could also have justifiably denied the application if it had determined that the proposed use would endanger the public health and safety and the general welfare of the area affected, and if the factual basis and reasons for that determination at the time the action was taken were expressed in findings, reflected in the council minutes, or otherwise established in judicial proceedings challenging its determination.” (283 Minn. 197, 167 N.W.2d 49)
The “reasons” given by the Afton city council in denying the application of Barton were conclusions of law, not “findings” of fact as mandated by Zylka v. City of Crystal, supra.
It must be kept in mind that the application for a special-use permit to mine gravel *720submitted by Barton provided for a temporary use of the subject property, not a permanent use. Adequate provisions had been made, guaranteed by a bond furnished by applicant Barton, to restore the premises to a suitable condition so as not to adversely affect the area environmentally. The contemplated special-use, mining of subsurface gravel, was in conformity with existing zoning requirements of the city of Afton, and the so-called comprehensive plan did not address itself to gravel mining operations. It appears clear, however, that the highest and best temporary use of the subject property, as well as much of the surrounding area including the contiguous property owned by the State of Minnesota which contains substantial deposit of gravel, is at present gravel mining.
Factual support for the city of Afton’s first reason for refusal of the permit was not legally sufficient, having in mind that the special use was temporary and with the requirements for restoration of the premises and the safeguards provided including the bond requirement.
The second reason for the city’s denial of the permit was not factually supported so as to satisfy the test of legal sufficiency. The testimony of Dr. Dale Chelberg, a biologist associated with the Metcalf Nature Center (which adjoins the Bishop parcel, the subject property), was relied upon by the city in adopting this reason. Dr. Chelberg, lacking the necessary qualifications as an expert on geological matters, could not provide sufficient factual reasons to support a legally sufficient basis for a realistic or reliable opinion on the question of environmental damage. His testimony and opinions would not be permitted in a trial before a court or a jury.
I agree with the majority opinion that the city’s third reason was not a legally sufficient reason.
The majority, as well as the city of Afton, mistakenly placed the burden of proof on the applicant in the city’s fourth reason stated at the time of its denial of the permit. A special-use permit contemplates a use which is permitted by the existing zoning. It was incumbent therefore that to deny the applicant Barton’s application the city must show at the time it denies the permit that the granting of the permit will adversely affect or endanger the public health and safety and the general welfare of the area affected, as stated in Zylka v. City of Crystal, supra.
The only evidence on this subject was the testimony of a real estate broker who testified that the permit would adversely affect real estate values. Again having in mind the temporary use contemplated, this evidence alone, absent any evidence that the health, safety, morals, and general welfare would be adversely affected, is legally insufficient to sustain the city’s reason on this ground.
The city’s fifth reason for its denial of Barton’s application is perhaps the most convincing reason for the denial. However, because the city maintains continuing authority over zoning, land use laws, and building permits and may insist that certain requirements and safeguards be fulfilled by the applicant in restoring the subject property to suitable grades and structurally suitable soil for the erection of buildings, whether they be ultimately residential or light industrial use as changing conditions may dictate, I find this reason to be legally insufficient to support the denial of the special-use permit.
I find that the city of Afton acted arbitrarily and capriciously in denying the application of Barton for a special-use permit when it acted in a quasi-judicial capacity.
I would sustain the trial court or, in the alternative, remand with directions that the city council conduct further hearings in full conformity with the prior decisions of this court.
Acting as Justice of the Supreme Court by appointment pursuant to Minn.Const. art. 6, § 2, and Minn.St. 2.724, subd. 2.