(concurring in part, dissenting in part).
I concur with the majority’s conclusion that this case should be remanded to Nobles County for issuance of the conditional use permit (CUP). However, I respectfully dissent from the majority’s assertion that we can adjudicate the effect of a relevant change in controlling law — the new setback amendment — when no finding about whether it has a rational basis can be made in this writ of certiorari proceeding. Our case law provides that law-making bodies have the authority to change the law relevant and applicable to a particular situation or litigation unless the parties or litigants can demonstrate that they have a vested right or that estoppel should apply. See, e.g., Holen v. Minneapolis-St. Paul Metro. Airports Comm’n, 250 Minn. 130, 137, 84 N.W.2d 282, 287 (1957) (stating that appellate courts must dispose of case in accordance with amendatory statutes clearly intended to be retroactive and applicable to pending litigation not involving a vested right). The majority concedes it has no legal authority to review the legislative act of the setback change by certiorari but then goes on to nullify a duly authorized legislative act of the County because it was one of the grounds that was used by the County to deny the CUP. The majority reasons that to allow the effect of this new legislative act would be “so inequitable that it is arbitrary and capricious” and decrees “that the setback amendment cannot be applied lawfully to this particular project.”
In its holding, the majority also acknowledges the general rule requiring appellate courts to apply the law as it exists at the time the appellate court ruled, even if there was a change in the law since the lower court considered the matter. The *581majority adds a caveat to this principle. Even though the recognized exceptions to this rule relating to vested rights and equitable estoppel do not apply to these “particular circumstances,”- the majority reasons that that “does not mandate that we ignore what has occurred here.” The court then adds dicta indicating that “we should be cautious about creating procedural circumstances through which zoning authorities feel they have carte blanche to arbitrarily block otherwise lawful development by the passage of new zoning law” citing the dissent in Almquist v. Town of Marshan, 308 Minn. 52, 82-83, 245 N.W.2d 819, 834-35 (1976) (Kelly, J., dissenting). Based on this caution, the majority deviates from the usual rule of applying the amended law. Instead, the majority expands Earthburners, Inc. v. County of Carlton, 513 N.W.2d 460 (Minn.1994), to limit not only th.e factual record on remand but also to eliminate lawful changes made by an executive branch acting in its quasi-legislative capacity. It does so even though the Nobles County Board of Adjustments, the zoning authority in Nobles County that handles variances from setback requirements, see NCO §§ 502, 506, is not even a party to this proceeding. Nor has Interstate ever applied for a variance. Accordingly, deciding whether Interstate must comply with setback requirements is not properly before the court. We have no constitutional or statutory authority to ignore the quasi-legislative acts of the Nobles County Board of Commissioners on the facts in this proceeding.
Interstate does not have a vested right in the existing law or in pending litigation until there has been a final judgment. See Bolen, 250 Minn. at 136, 84 N.W.2d at 287. Here, there has been no final judgment and thus, a judicial remand does not tie the hands of a co-equal branch of the government from performing its lawful duties. See generally Donaldson v. Chase Sec. Corp., 216 Minn. 269, 277-78, 13 N.W.2d 1, 5-6 (Minn.1943) (holding that it is proper to apply new legislation to a case where a final judgment has not been rendered). Nor has Interstate acquired a vested right in the existing zoning scheme because there is no vested right in zoning laws, see Property Research & Dev. Co. v. City of Eagan, 289 N.W.2d 157, 158 (Minn.1980), until substantial expenditures have been made, see Hawkinson v. County of Itasca, 304 Minn. 367, 374, 231 N.W.2d 279, 283 (1975) (explaining that where un-zoned property was later zoned residential, expenditures associated with the acquisition of the property, the removal of trees, the grading of the land or excavation created no vested right because more substantial overt acts are required); Kiges v. City of St. Paul, 240 Minn. 522, 538, 62 N.W.2d 363, 373-74 (1953) (holding that mere possession of a building permit, the incurring of some expense and the assumption of obligations preliminary to construction, such as excavation, created no vested right). Short of a vested right, we have held that we will estop the zoning authority from applying its laws where a property owner has taken substantial action in reliance on “wrongful” government conduct. See Ridgewood Dev. Co. v. State, 294 N.W.2d 288, 292-93 (Minn.1980) (defining zoning estoppel). Neither legal claim can be made in this case.
The net effect of the majority’s holding is that under certain circumstances it may be possible for plaintiffs to initiate lawsuits and, without having to prove zoning estop-pel, prevent the legislature and executive agencies from confronting new situations and problems brought to their attention. This is so, even though there is no finding that the zoning authority did not act to promote the general welfare of the public. The Supreme Court of North Dakota has already approved similar legislation based on relocation costs. See generally Grand Forks-Traill Water Users, Inc. v. Hjelle, 413 N.W.2d 344, 347 (N.D.1987) (holding that ordinances prohibiting utilities from locating lines within 100’ of the center line of a state highway right-of-way without permission from the board of county commissioners and requiring the utilities who *582located in contravention of that provision to pay for relocation expenses when necessary for highway expansion were within the police power because they “tend[] to promote sound and efficient highway planning, safety, and the public welfare. In limited circumstances, reducing the cost of possible future highway expansion is a permissible objective.”). Inquiring into the basis for this legislation is not appropriate during writ of certiorari proceedings by an appellate court. See Honn v. City of Coon Rapids, 313 N.W.2d 409, 414 (Minn.1981) (holding that legislative acts are not subject to review by writ of certio-rari). Instead, these issues should be first determined in the district court where appropriate findings can be made and where the burden of proof will lie where it properly belongs, on the challenger of the legislation. See generally State, by Rochester Ass’n of Neighborhoods v. City of Rochester, 268 N.W.2d 885, 888 (Minn.1978) (stating that the burden for invalidating zoning legislation is on the opponent). Because we cannot inquire into whether this legislation was properly enacted during writ of certiorari proceedings, we must presume, without deciding, that it is a legal enactment.
The majority asserts that the limited nature of the Earthbumers remand in part compels their holding. However, to reach this result, the court expands Earthbur-ners to limit not only the factual record on remand but to nullify lawful changes made by the executive branch acting in its quasi-legislative capacity. In particular, the majority emphasizes the purpose behind the Earthbumers exception: “to prevent any unfairness to the applicant” by avoiding post hoc rationalizations. 513 N.W.2d at 463. As an appellate court, it is well within our authority to control the scope of a remand and to define what evidence is relevant to the proceedings, thereby controlling the quasi-judicial function of the Board. See, e.g., Honn, 313 N.W.2d at 416 (outlining proper procedure for review of zoning matters). Here, we could properly limit any evidence not relevant to the issue raised in the first proceedings — higher costs due to road projects. But there is nothing new in the factual record except the ordinance amendment and a continuing concern for pole placement that is in the best economic interests of the County; the setback amendment does implicate these issues. In contrast, the judicial branch of the government does not have any constitutional authority to limit the exercise of the lawmaking functions of the legislature or executive agencies acting pursuant to delegated powers. Our role is to interpret the law. The majority suggests that we have turned a “blind eye” to conduct affecting a judicial order, but in the absence of a right to protect, the doctrine of separation of powers compels the judiciary to remand the case.
Deciding whether to apply new legislation to pending litigation is not new territory for this court. The doctrine of the “law of the case” is a rule of practice followed in Minnesota. See Loo v. Loo, 520 N.W.2d 740, 744 n. 1 (Minn.1994). “It is a discretionary doctrine developed by the appellate courts to effectuate the finality of appellate decisions. It ordinarily applies where an appellate court has ruled on a legal issue and has remanded the case to the lower court for further proceedings.” Id. “Issues determined in a first appeal will not be relitigated in the trial court nor re-examined in a second appeal.” Mattson v. Underwriters at Lloyds of London, 414 N.W.2d 717, 720 (Minn.1987).
There are exceptions to the law of the case doctrine however. The law of the case yields to a change in the relevant law pending appeal because there is no vested right in the existing law or in a pending action until final judgment has been entered. See Pirkov-Middaugh v. Gillette Children’s Hosp., 495 N.W.2d 608, 611 (Minn.1993); Holen, 250 Minn. at 137, 84 N.W.2d at 287. This case is slightly different from Pirkov-Middaugh and Holen because here there has been an appellate court decision and a remand for “addition*583al proceedings and appropriate findings.” However, we have applied new legislation even after an appellate determination and remand.
In Donaldson v. Chase Sec. Corp., we held that amendatory legislation must apply to a pending case even though the legislation was passed subsequent to a determination by this court that the cause of action was barred and a remand on another claim. 216 Minn. at 277-78, 13 N.W.2d at 5. In that case, the district court initially found in favor of the plaintiffs on their statutory securities law claim against the defendant’s statute of limitations defense, but made no findings on a deceit based on misrepresentation claim. See id. at 271, 13 N.W.2d at 2. On appeal, we held that the statute of limitations had run against the plaintiff, and we remanded for findings on the deceit issue. See id. The district court found in favor of the plaintiffs on that issue. See id. The legislature then enacted a new securities statute of limitations proviso. Act of April 28, 1941, ch. 547 sec. 18, § 3996-24, 1941 Minn. Laws 1119 (codified as amended at Minn.Stat. § 80.26 (1941).) On appeal, we were asked to decide if the legislature intended with this new legislation to lift the bar of the statute where the statute of limitations had already run; if the legislature had the power to do so; and finally if the legislature intended the legislation to be applicable to pending litigation. See Donaldson, 216 Minn. at 272, 13 N.W.2d at 3. We noted that because the legislature acted promptly after our decision, “[t]he inference is plain that it was dissatisfied with the law as laid down” in our opinion and intended to lift the bar. Id. After deciding that the act was constitutional, we held that it must apply to the litigation:
[B]oth reason and the weight of authority seem to point to the view that, where a statute which is clearly intended to be retroactive and apply to pending litigation is enacted after judgment and pending appeal, the Appellate Court may dispose of the case in accordance with the law as changed by the statute.
Id. at 277, 13 N.W.2d at 5 (emphasis added).
More recently, we have framed the issue as one of the “finality of judgments” and held that determining the finality of judgment must be done by looking at what the appellate court has done:
If complete finality cannot be accomplished, if something remains to be done by the court below, the appellate court will ordinarily so indicate, usually by a remand with directions or a mandate which the trial court must follow. Consequently, the scope of the finality of an appellate decision depends on what the court intends to be final, and this is determined by what the court’s decision says.
Mattson, 414 N.W.2d at 720; see, e.g., Loo, 520 N.W.2d at 746. Here, there was not a final judgment. The case was not remanded to Nobles County Board of Commissioners by the court of appeals for the summary issuance of a CUP. Instead, the question of whether Interstate was entitled to a CUP was still open; only the scope of the relevant evidence in the further proceedings was circumscribed. Thus, the law of the case, however circumscribed by the EaHhbumers remand, is no barrier to applying the relevant new legislation.
Other courts that have addressed the issue have also found that the district court can deviate from the mandate of an appellate court on remand where there has been an intervening change in controlling law. The leading case is Banco Nacional de Cuba v. Farr, 383 F.2d 166 (2d Cir. 1967). In a previous appeal of the same case, the United States Supreme Court had reversed the Second Circuit Court of Appeals and held that the trial court could not examine the validity of an expropriation by the Cuban government because of the “act of state” doctrine. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964). *584The case was remanded to the district court to decide other litigable issues of fact in proceedings consistent with the Supreme Court’s opinion and mandate. However, before the district court could enter a final judgment on the remanded issues, Congress enacted the Hickenlooper Amendment to the Foreign Assistance Act of 1964, 22 U.S.C. § 2370(e). The amendment provided that United States courts could not decline to determine expropriation cases because of the act of state doc-ti-ine. The district court had to determine whether to follow the Supreme Court mandate or apply the new amendment. It applied the new amendment and the Second Circuit agreed that the statute governed over the previous mandate:
We have learned of no case involving the effect on the rights of litigants of a federal statute, inconsistent with a Supreme Court mandate, which became law after the Supreme Court had remanded a case to the trial court but before the trial court had acted upon the merits after the remand. * * * We must therefore determine whether the mandate rule should cover this novel situation; it is our view that it should not be extended to do so.
The Supreme Court mandate rule is nothing more than one specific application of a general doctrine appellate courts apply to their orders to lower courts, a doctrine commonly referred to as the law of the case. Other courts in applying the law of the case rule have held that a lower court is not bound to follow the mandate of an appellate court if the mandate is, in the interim, affected by an authority superior to the court issuing the mandate, such as by a higher appellate court, either state or federal, or by an en banc decision of the same court. This principle has also been applied when the mandate of the court is affected by intervening statutory enactment. The same principle should apply here; any limiting language in the Supreme Court mandate should not preclude judicial application of the Amendment in this case for the rule of law expressed by the mandate has been affected by a subsequently enacted federal statute.
Banco, 383 F.2d. at 178 (citations omitted). Further, the court set out the separation of powers problem in failing to apply the applicable legislation:
Moreover, * * * there may well be a constitutional objection to an application of the mandate here. The law of the case is not based on any constitutional authority but is only a doctrine of judicial administration based on the practice of the courts. A federal statute, on the other hand, is an assertion of its constitutional power by Congress and is entitled to respect as the supreme law of the land. It is questionable whether the courts may frustrate such a statute by interposing a judge-made rule of practice.
Id. (citations omitted).
The holding in Banco is in accord with our holding in Donaldson and with other jurisdictions that have decided the issue of the applicability of a change in law after remand. See, e.g., Jordan v. Jordan, 132 Ariz. 38, 643 P.2d 1008, 1013-14 (1982) (“ ‘[L]aw of the case’ doctrine is inapplicable where the policy of the law has been changed, by legislative enactment * * *, while the case is still pending resolution.”); Reich v. Miller, 260 Iowa 929, 151 N.W.2d 605, 610 (1967) (holding that relevant change in procedural law is controlling in a pending case); Petty v. Clark, 113 Utah 205, 192 P.2d 589, 594 (1948) (holding that relevant change in controlling law is applicable to pending litigation where it does not contravene a constitutional provision or deprive anyone of due process of law).
Even if, as the majority concludes, the zoning authority intended to change the outcome in the case, it is of no consequence in this litigation. See Holen, 250 Minn. at 137, 84 N.W.2d at 287. In fact, in Donaldson, we searched for precisely this type of clear evidence in order to deter*585mine whether the legislature did in fact intend for the amendment to apply to pending litigation. 216 Minn. at 274, 13 N.W.2d at 4. We held that the court is “bound to give effect” to “obvious legislative purpose” when it is “expressed in clear language without qualification and the circumstances under which the law was enacted support the indicated purpose.” Id. Similarly, in Holen, we cited the language of the new law, “as amended shall * * * operate not only prospectively, but retroactively,” and found “[c]learly, the * * * legislature intended its' amendatory legislation to be curative.” 250 Minn. at 136, 84 N.W.2d at 286. Other jurisdictions have looked for similar evidence and reached the same holding. See Banco, 383 F.2d at 174-76 (holding that the amendment was intended to apply to pending cases and citing comments from legislative history: “The amendment is intended to reverse in part the recent decision of the Supreme Court in Banco * * “[the amendment] applies to cases pending at the time of its enactment”; and “[w]e think it perfectly proper that the Congress of the United States should have the last word on this important policy question.”); Jordan, 643 P.2d at 1014 n. 5 (looking at language of amendment and holding “[t]he legislative intent to give retrospective effect to the statute is obvious”).
Instead of following Donaldson and applying the law as amended, the majority subjects the Board’s adoption of the amendment to an analysis of whether they had a sufficient “articulated” reason for that adoption, rather than utilizing the “traditional standard of review” for certio-rari — “whether the evidence provides a substantial basis for the decision.” Honn, 313 N.W.2d at 414. In spite of the procedural posture of this case and the ban on reviewing quasi-legislative actions in writ of certiorari proceedings, the majority does not limit its review to the quasi-judicial meetings where the commissioners and board discussed the amendment as a basis for the denial, but looks instead at a June 24, 1998, meeting by the commissioners in which they engaged in quasi-legislative conduct, adopting the amendment. The majority effectively subjects the legislation and the Board’s proceedings in adopting it to a rational basis review, placing the burden on the Board to have articulated a sufficient reason, rather than on Interstate where it properly belongs. See generally State, by Rochester Ass’n of Neighborhoods, 268 N.W.2d at 888 (stating that the burden' for invalidating zoning legislation is on the opponent).
At the same time, the majority overlooks evidence indicating that although Interstate’s application and the court of appeals’ ruling brought this problem to the Board’s attention, the Board may have intended this amendment to have general applicability to “all utilities.” See Commissioners Meeting, July 7, 1998 (Zoning County Administrator: “[T]he amendments to the ordinance [do] not just apply to electrical, but also rural water, gas lines, etc. It is much easier to deal with all of them the same.” Attorney for the County: “[T]his does not only include Interstate Power, as it is a larger problem tha[n] just Interstate. * ⅜ * [T]he new amendment applied] to all utilities. Reasons for denial should relate to health, safety, and welfare of all residents.”). While this is the type of evidence that may be reviewed in a district court action, we should decline to engage in the analysis of the rationale behind quasi-legislative conduct in this cer-tiorari proceeding.
Finally, as the majority correctly points out, other jurisdictions have applied a somewhat watered down version of zoning estoppel in which substantial expenditures need not be proven in order for the landowner to prevail. Instead, zoning authority bad faith is the only element that must be shown. Neither party urged this court to adopt such a test in this case. Furthermore, the courts in those cases were able to conclude that the zoning authority had acted in bad faith based on the evidence in the record and lower court findings. No *586such finding has been made by the fact finder here and this case law is therefore inapplicable. See, e.g., Marmah, Inc., v. Town of Greenwich, 176 Conn. 116, 406 A.2d 63, 67 (1978) (determining that there was evidence to support the district court’s finding that the Board acted with “predisposition and predetermination” rather than to promote the general welfare when it postponed action on the application in order to consider a proposed zoning regulation and the application simultaneously and adopt the regulation in order to deny the application); United States Cellular Corp. v. Board of Adjustment, 589 N.W.2d 712, 718 (Iowa 1999) (determining that the district court’s finding that the Board acted in bad faith was supported by evidence in the record that the Board relied on an ordinance not yet in effect to deny the application; that the Board’s written decision did not accurately reflect its action at the meeting; that the reasons given in the written decision were not supported by evidence in the record; and that the Board exaggerated the level of neighborhood opposition); Whitehead Oil Co. v. City of Lincoln, 245 Neb. 660, 515 N.W.2d 890, 400 (1994) (holding that the city had not acted to promote the general welfare based on evidence that though the change in zoning designation encompassed a larger area, it was intended to and achieved the result of only affecting Whitehead; the petition for the change of zoning was filed on the same day the commission was scheduled to issue its recommendation on the application; and finally the application was several tunes delayed so as to allow the change of zoning request to “catch up” with the use permit so that they could be considered together); State ex rel. Humble Oil & Refining Co. v. Wahner, 25 Wis.2d 1, 130 N.W.2d 304, 306, 311 (Wis.1964) (determining that the district court’s finding that the town acted arbitrarily and capriciously was supported by evidence that the intersection where Humble applied to place a filling station had a filling station on each other corner; that the Board approved the application of one existing station to expand; and meanwhile the Board three times denied Humble’s application without formal findings or a statement of reasons). Here, the majority reaches the same legal conclusion without the required factual basis.
Rather than infringing on quasi-legislative power, which because of the procedural posture of this case we must presume was validly exercised, I would only decide whether there is substantial evidence in the record to support the findings that implicated the amendment. In those two findings of fact, the Board asserts that the proposed pole placement is “inconsistent with the Zoning Ordinance, Policy Plan, and purposes of the AG District” and the “overall needs of the County.” The initial application for a CUP was approved at least in part because under the County’s definitions contained in its zoning ordinance, Interstate’s proposed use is not prohibited or incompatible with the overall “needs” of the County. In fact, Interstate’s transmission and distribution lines are classified as “essential services” under the County’s zoning ordinances, which defines such services as those that “are required for protection of the public health, safety, or general welfare.” NCO § 302(38) (emphasis added). Interstate’s proposed use is a conditional use which the county ordinance defines as “[a] use [which] generally may be appropriate or desirable in a specified zone, but requires special approval” for location and design to avoid “special problems such as excessive height or bulk or abnormal traffic congestion.” NCO § 302(26) (emphasis added); see also § 603.4. The record indicates that the proposed power line’s design and location have not presented any of the inherent hazards or special problems of height, bulk or negative impact on traffic that the code was designed to avoid and that are embodied in the factors governing the issuance of conditional use permits found in the county ordinance. There is no evidence that the proposed use would endanger the health, safety or general welfare of *587the community. “The control of uses authorized within a zone must have a substantial relationship to the public good and not result from a desire to resist the operation of economic laws.” Metro 500, Inc. v. City of Brooklyn Park, 297 Minn. 294, 302, 211 N.W.2d 358, 363 (1973). Thus, there is no substantial evidence that relates to the needs and welfare of the County to support the conclusion that the CUP must be denied because of its inconsistency with the new setback amendment. On that basis, I would reverse the court of appeals and remand to the County with an order to issue the CUP and leave the legality and effect of the setback amendment for another day.