                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-1475

                                    Jeffrey A. August,
                                          Relator,

                                            vs.

                        Chisago County Board of Commissioners,
                                     Respondent.

                                 Filed August 17, 2015
                                        Affirmed
                                     Reilly, Judge

                        Chisago County Board of Commissioners


Terry A. Watkins, Watkins Law Office, LLC, Faribault, Minnesota (for relator)

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

       Considered and decided by Worke, Presiding Judge; Reilly, Judge; and

Stoneburner, Judge.*

                                    SYLLABUS

       In determining whether to grant a conditional-use permit, the responsible

government unit may consider the resulting noise from the proposed use even if the noise

levels do not exceed the sound level limits promulgated by the responsible state entity.




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

REILLY, Judge

       Relator-landowner Jeffery August challenges respondent Chisago County Board

of Commissioners’ (county board) denial of his conditional-use permit (CUP)

application.   August argues that (1) the county board’s denial was arbitrary and

capricious and (2) the county board erred when it failed to consider certain Minnesota

Pollution Control Agency (MPCA) rules.           Additionally, August seeks sanctions and

attorney fees under Minn. Stat. § 549.211 (2014). We affirm.

                                          FACTS

       The Property

       In 2003, August purchased a 20-acre tract of land located in the Sunrise Township

(the property). The property is zoned for agricultural use. Agricultural use in Chisago

County is “intended to provide areas to be utilized for agriculture and agriculture related

uses and low density residential areas.” Chisago Cnty. Zoning Ord. (CCO) § 5.06(A)

(2008). The majority of the land surrounding the property is developed in a rural,

residential manner, with farm fields or residential lawns. There is minimal vegetation or

barriers screening the property.

       During the past few years, August built a fenced-in arena on his property for

mounted shooting events.           He later built an announcer’s booth with a public

announcement system to use in connection with the events. In 2013, August formed a

club, Cowboy Mounted Shooting, and began hosting mounted shooting competitions and

clinics. Mounted shooting competitions consist of 10 to 15 contestants who ride on


                                             2
horseback while attempting to shoot balloons on mounted posts in the center of the arena.

Contestants shoot at the balloons with .45 caliber blanks.

       August typically holds these competitions on Saturdays from 10:00 a.m. to dusk

and on Sundays from noon until 6:00 p.m.           In connection with the competitions,

contestants and spectators camp overnight in either tents or RVs in an adjacent pasture on

the property.   In addition to the competitions, August hosts “major shoots,” which

typically span the course of a three-day weekend. August also offers one-day clinics

where club members can train and learn safety skills. The 2014 schedule listed two

clinics, five shoots, and five major shoots.

       In 2014, after receiving complaints about the property, the Chisago County

Department of Environmental Services and Zoning (zoning department) investigated the

property. The zoning department determined that August’s use of the property did not

conform to its zoned use.

       CUP Application

       The zoning department advised August of the need for a CUP, and August applied

for a CUP in May 2014. On May 23, 2014, the zoning department informed August that

his CUP application was incomplete.            August submitted additional information

concerning the property and the CUP application. The additional information explained

that the noise from gunfire would cease just before dusk and that mounted shooting

events would be limited to seven weekends.

       August then met with zoning department staff and agreed to have his application

processed as rural retail tourism/commercial outdoor recreation use. August submitted an


                                               3
additional letter that addressed the “small-scale” and “low-impact” criteria of the rural

retail tourism criteria. The Sunrise Township Planning Commission recommended a

limited CUP.

          Sunrise Township Recommendation

          On June 19, 2014, the Sunrise Township Board (township) recommended denying

the CUP application under section 8.05 of the CCO due to negative impact and the

intrusion of noise caused by the proposed use. The township cited to the “noise based on

the PA system and approximately 2,000 rounds [fired] per day” as the grounds for its

denial.

          Chisago County Planning Commission Recommendation

          On July 3, 2014, the Chisago County Planning Commission (planning

commission) solicited public comments at a public hearing. Zoning department staff

prepared a report in preparation for the hearing. With regard to the possible impact on

neighboring properties, the report noted that the noise at the property, as estimated by the

staff, “does not exceed, or even approach, the MPCA decibel limit.”            The report,

however, stated that the noise is “easily audible from the four properties visited by Staff”

and that “steady gunfire over the daylight hours of many weekends would rise to the level

of significant annoyance for neighboring landowners.” Ultimately, the report

recommended approving the CUP with conditions.

          At the planning commission public comment hearing, multiple neighbors

expressed concerns over




                                             4
              the fairly constant noise from the shooting, the volume of
              shots fired being often over 1,000 rounds per day, the use of
              the loudspeaker, the loss of peace and quiet and enjoyment of
              their property, potential property value depreciation,
              disruption to the rest and repose of small children, animals,
              livestock and the general negative impact to their quality of
              life.

       All neighbors commenting on the proposed CUP agreed that the noise caused by

the mounted shooting events was significant and disruptive. Conversely, club members

spoke in support of granting the CUP. When asked by the planning commission if

August could reduce the number of competitions per season to four, August replied that

he could not do so because it would not permit his club members adequate access to

competition. The planning commission discussed the CUP and voted to recommended

denial because it would violate “Section 4.15, part D, part five [of the rural retail tourism

criteria], ‘creates negative impact on the neighborhood by intrusive noise.’”

       Chisago County Board of Commissioners’ Denial

       On July 16, 2014, the county board held a public hearing and discussed the CUP

application. At this meeting, one of the members of the planning commission provided

comment during the citizens’ forum, stating that he strongly opposed the CUP.             In

addition, a county board member voiced concerns regarding the decibel level: “I’m

concerned about a legal question which has been raised by the applicant, which I think

has not been addressed. And that is the decibel level. I think that that kind of issue . . .

needs to be addressed . . . .” The county board voted to deny the CUP application three-

to-one with one abstention.     Their denial incorporated the findings of the planning

commission, denying the CUP “based upon its conflict with the required performance


                                             5
characteristics cited in Section 4.15 of the Chisago County Zoning Ordinance governing

rural retail tourism uses.”

       August appeals by writ of certiorari.

                                          ISSUES

       I.     Was the county board’s denial of the CUP application unreasonable,

arbitrary, or capricious?

       II.    Is August entitled to attorney fees?

                                        ANALYSIS

                                               I.

       A county board’s decision regarding a CUP is quasi-judicial and reviewable by

writ of certiorari. Interstate Power Co. v. Nobles Cnty. Bd. of Comm’rs, 617 N.W.2d

566, 574 n.5 (Minn. 2000); Picha v. Cnty. of McLeod, 634 N.W.2d 739, 741 (Minn. App.

2001). We independently review a county board’s decision to grant a CUP to determine

if it is unreasonable, arbitrary, or capricious. RDNT, LLC v. City of Bloomington, 861

N.W.2d 71, 75 (Minn. 2015).

       “County zoning authorities have wide latitude in making decisions on conditional

use permits, and except in rare cases where there is no rational basis for the decision, it is

the duty of the judiciary to exercise restraint and accord appropriate deference to civil

authorities in routine zoning matters.” Big Lake Ass’n v. Saint Louis Cnty. Planning

Comm’n, 761 N.W.2d 487, 490 (Minn. 2009) (quotations omitted). But “[a] municipality

may not base its denial on ‘unreasonably vague or unreasonably subjective’ standards.”

BECA of Alexandria, L.L.P. v. Cnty. of Douglas ex rel. Bd. of Comm’rs, 607 N.W.2d 459,


                                               6
463 (Minn. App. 2000) (quotation omitted). A denial of a CUP is arbitrary where the

applicant establishes that all of the standards specified by the zoning ordinance as

conditions of granting the permit are satisfied. Yang v. Cnty. of Carver, 660 N.W.2d 828,

832 (Minn. App. 2003). The burden on a landowner challenging the denial of a CUP is

lighter than one challenging the approval of a CUP. RDNT, LLC, 861 N.W.2d at 75 n.4.

       In determining whether a governing body acted unreasonably, arbitrarily, or

capriciously, we first determine whether the reasons provided by the governing body

were legally sufficient. RDNT, LLC, 861 N.W.2d at 75-76. Second, if the reasons given

are legally sufficient, we must determine if the reasons had a factual basis in the record.

Id. at 76. August claims that the planning commission did not address the zoning

ordinance criteria and failed to provide a proper and sufficient legal basis for the denial of

his CUP.

                                             A.

       The zoning ordinances allow the following as conditional uses for agriculturally

zoned property:

              Commercial recreation areas that are similar to public
              recreation areas including private campgrounds, golf courses,
              swimming pools, resorts, and crafting uses such as quilting
              and scrapbooking. Restaurants and/or liquor establishments
              when clearly incidental and associated with the primary
              commercial recreation use.

Chisago Cnty. Zoning Ord. § 5.06, subd. (C)(5) (2008).

       In deciding whether to issue or deny a CUP, the county’s zoning ordinance states,

in relevant part, that the planning commission



                                              7
             shall consider possible effects of the proposed conditional use
             based upon (but not limited to) the following general factors
             and any other requirements set forth in this Ordinance or
             deemed otherwise relevant:
                    1. The Comprehensive Plan and development
                    policies of the County;
                    ...
                    3. The use shall be sufficiently compatible or
                    separated by distance or screening from
                    adjacent development or land so that existing
                    development does not suffer undue negative
                    impact and there will be no significant
                    deterrence to future development;
                    ...
                    5. The use in the opinion of the County is
                    reasonably related to the overall land use goals
                    of the County and to the existing land use;
                    ...
                    7. The use shall not cause traffic hazard or
                    congestion; and
                    8. Existing nearby properties shall not be
                    adversely affected by intrusion of noise, glare or
                    general unsightliness.

Id. § 8.04, subd. C. In addition to the CUP requirements, rural retail tourism uses must

remain “small-scale and low-impact.” Id. § 4.15, subd. D (Supp. 2011). “Small-scale”

and “low-impact” land uses are ones 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;
             5. Will not negatively impact the neighborhood by intrusion
             of noise, glare, odor, or other adverse effects.

Id.



                                            8
      The county board voted to deny the CUP based on its conflict with the rural retail

tourism use, specifically the small-scale/low-impact requirement and the impact it will

have on the neighborhood “by intrusion of noise, glare, odor, or other adverse effects.”

The county board relied on the criteria enumerated in the county zoning ordinances and

thereby provided legally sufficient reasons for denying the CUP.1

                                            B.

      August also contends that the denial of his CUP lacks a factual basis because the

noise created by the mounted shooting does not rise above the sound pressure levels

promulgated by the MPCA and that the county board erroneously considered

neighborhood comments.

      1.     Noise levels

      We note that our discussion of the noise decibel limits is in the context of a

conditional-use application. The use at issue is not one permitted by the county’s zoning

ordinances. August contends that the county board cannot consider the effects of noise

unless the noise meets or exceeds the controlling noise standards as determined by the

responsible government entity. We disagree for the following reasons.


1
  August also challenges the county board’s consideration of his application under the
“rural retail tourism” criteria. The June 12, 2014 notes from a zoning department staff
member state that a staff member discussed with August the option of proceeding with
his CUP application as a “hybrid—commercial outdoor recreation processed as a rural
retail tourism so as to emphasize the tourism draw—out of town visitors etc.”
Furthermore, in a June 12, 2014 letter sent by August to the zoning department, August
explained how the CUP would contribute to the purpose of rural retail tourism. In this
letter, August noted that existing nearby properties would be adversely affected by noise.
Thus, the county board’s reliance on the rural retail tourism criteria should not come as a
surprise to August.

                                            9
       First, a plain reading of section 7.05 does not suggest, as August contends, that it

is in conflict with the MPCA regulations. Section 7.05 of the county’s zoning ordinances

provides:

                    Noise and vibrations generated from any use shall be
             in compliance with Minnesota Pollution Control Agency
             rules. Any use established shall be so operated that no undue
             or objectionable noise resulting from said use is transmitted
             beyond the boundaries of that plat line of the site on which
             such use is located. This standard shall not apply to
             incidental traffic, parking, loading, construction, or temporary
             maintenance operations.
                    Any use creating periodic earth-shaking vibration shall
             be prohibited if such vibrations are perceptible to persons
             beyond the lot line of the site on which the use is located.
             The standard shall not apply to vibrations created during the
             process of construction.

CCO § 7.05 (2008). Minnesota Statutes section 116.07, subdivision 2(c) (2014), requires

that “[n]o local governing unit shall set standards describing the maximum levels of

sound pressure which are more stringent than those set by the Pollution Control Agency.”

Because section 7.05 requires that the noise generated from “any use” shall comply with

the MPCA’s noise standards, we fail to see how the county ordinance is in conflict with

Minn. Stat. § 116.07, subd. 2(c).2 The county ordinance does not establish more stringent

noise standards.


2
  We note that the legislature has exempted “skeet, trap or shooting sports clubs” from
any “standards adopted by any state agency for limiting levels of noise in terms of sound
pressure which may occur in the outdoor atmosphere.” Minn. Stat. § 116.07, subd. 2a
(2014). Thus, August’s reliance on rule 7030.0040 of the Minnesota Administrative
Rules is not persuasive. Moreover, rule 7030.0040 provides that “these standards do not,
by themselves, identify the limiting levels of impulsive noise.” Impulsive noise is
defined as “either a single sound pressure peak (with either a rise time less than 200
milliseconds or total duration less than 200 milliseconds) or multiple sound pressure

                                           10
       Furthermore, section 7.05 does not establish noise standards different from those

promulgated by the MPCA. Rather, the zoning ordinances require that a CUP applicant

demonstrate that the noise created by the proposed use will not adversely affect

neighboring properties, and the rural retail tourism sections require that the use will not

impact the neighborhood by intrusion of noise. Accordingly, section 7.05 is not in

conflict with the MPCA noise standards, as it does not define any decibel limits for noise

considerations.

       Second, August’s argument, in essence, urges this court to adopt, as a matter of

law, the proposition that a governing body can consider the effect noise will have on

surrounding properties only if the noise level surpasses the sound level limits

promulgated by the MPCA. Not only did our research reveal no caselaw supporting this

proposition but, under our statutory scheme, this proposed rule could place a governing

body or property owner at risk for a Minnesota Environmental Rights Act (MERA),

Minn. Stat. §§ 116B.01-.13 (2014), violation. See, e.g., State by Drabik v. Martz, 451

N.W.2d 893, 896-97 (Minn. App. 1990) (upholding temporary injunction under MERA

prohibiting certain conduct despite the county’s prior grant of a CUP allowing conduct);

McGuire v. Cnty. of Scott, 525 N.W.2d 583, 584 (Minn. App. 1994) (distinguishing

between MERA violations based on enumerated government standards and those based

on a general material adverse effect on the environment when homeowner brought


peaks (with either rise times less than 200 milliseconds or total duration less than 200
milliseconds) spaced at least by 200 millisecond pauses.” Minn. R. 7030.0020, subp. 6
(2013). The noise created by mounted shooting would presumably qualify as “impulsive
noise.”

                                            11
MERA claim against the county for a highway’s violation of the noise pollution rules

issued by MPCA); see Minn. Stat. § 116B.04 (2014) (requiring that a potential MERA

claimant show that the defendant’s conduct violates or is likely to violate “any

environmental quality standard”).

       MERA permits any person to maintain a civil action for declaratory or equitable

relief against another person “for the protection of the air, water, land, or other natural

resources located within the state, whether publicly or privately owned, from pollution,

impairment, or destruction.” Minn. Stat. § 116B.03, subd. 1. “Pollution, impairment or

destruction is any conduct by any person which violates, or is likely to violate, any

environmental quality standard, [or] limitation . . . .” Minn. Stat. § 116B.02, subd. 5.

Under MERA, the statutory definition of “person” includes “any natural person, any

state, municipality or other governmental or political subdivision or other public agency

or instrumentality.” Id., subd. 2. And the statutory definition of “natural resources”

includes “quietude.” Id., subd. 4. Consequently, if a government entity could only

consider noise from a proposed use that meets or exceeds the limits enumerated in the

administrative rules or statutes then the entity could, by definition, only consider noise

levels that establish a prima facie MERA violation. See Minn. Pub. Interest Research

Grp. v. White Bear Rod & Gun Club, 257 N.W.2d 762, 768 (Minn. 1977) (considering

noise levels in the context of establishing a prima facie MERA violation even when the

MPCA had not issued a standard regulating noise for skeet shooting); Citizens for a Safe

Grant v. Lone Oak Sportsmen’s Club, Inc., 624 N.W.2d 796, 806 (Minn. App. 2001)




                                            12
(“But the legislature did not exempt shooting sports clubs from MERA claims, only from

MPCA’s regulatory authority.”).

       Next, August cites to Minn. Stat. § 87A.05 (2014) and asserts, without a cite to the

record, that the noise from the mounted shooting would fall within the levels allowed by

statute for shooting ranges. See Minn. R. Civ. App. P. 128.02(c) (requiring that each

factual assertion be supported by a cite to the record). Upon reviewing the record, we

could find nothing in it specifying the actual decibel level of the noise created by the

mounted shooting events. The county zoning staff report stated that it estimated that

noise from the property would not exceed the MPCA decibel limits, but the report did not

confirm that noise level was measured in accordance with the statutory and

administrative rules’ guidelines. See Minn. Stat. § 87A.05 (“The noise level shall be

measured outside of the range property at the location of the receiver’s activity according

to Minnesota Rules, parts 7030.0010 to 7030.0080.”).

       2.     Citizen observations

       Next, August argues that the denial of his CUP lacked a factual basis because the

county board erroneously relied on citizen evaluations and concerns.          The county

maintains that the county board is not limited to expert testimony in making a decision

and can rely on observations by individuals. We agree.

       August relies on Scott Cnty. Lumber Co. v. City of Shakopee, 417 N.W.2d 721,

727 (Minn. App. 1988), to support his proposition that the county board should not have

relied on public comment but, instead, only relied on the zoning department’s staff report.

In Scott Cnty. Lumber Co., the city council voted to deny a CUP to extract gravel from a


                                            13
130-acre tract of land. Id. at 722. The CUP applicant met the 12 criteria laid out in the

city’s zoning code. Id. at 727. Additionally, it was “uncontroverted” that the applicant

agreed to comply with 20 additional conditions imposed by the city, and multiple

different experts testified that the conditions would mitigate “any environmental impacts

in the form of noise, dust and water pollution and prevented traffic hazards.” Id.

Experts conducted environmental assessments and sound tests, and these tests supported

granting the CUP. Id. at 722. Experts, landowners, city council members, and the city

appraiser all testified at the district court. Id. at 722-26.

       In reviewing the city’s denial, this court first determined that the CUP applicant

fully complied with all the specified standards in the city code in addition to the 20

additional requirements. Id. at 727. Testimony from engineers, a city planner, a soil

scientist, and an environmental geologist recommended granting the CUP. Id. The

neighboring landowners’ testimony expressed their personal opinions regarding the effect

of the gravel operation and provided no expert opinion to support their opinions. Id. at

728.

       In concluding that the city council’s denial of the CUP was arbitrary, we explained

that “[c]ommunity opposition to a landowner’s desire to use his property for a particular

purpose is not a legally sufficient reason for denying a conditional use permit,” and that

the denial must “be based on something more concrete.”            Id. at 728; see C. R.

Investments, Inc. v. Vill. of Shoreview, 304 N.W.2d 320, 325 (Minn. 1981) (stating that

neighbors’ objections to conditional-use permit application must be based on more than

conjecture or speculation); Yang, 660 N.W.2d at 833 (finding neighbors’ anecdotal


                                               14
comments insufficient when they contained no detail as to how the cars they witnessed

may affect traffic circulation). Ultimately, the Scott Cnty. Lumber Co. court found that

the neighbors’ testimony was preferred over the experts’ testimony without any adequate

supporting reasons and granted the CUP.          417 N.W.2d at 728.     Moreover, it was

uncontroverted that the CUP applicant agreed to comply with the 20 additional conditions

imposed by the city to minimize the environmental impact of the project. Id. at 727-28.

       Unlike the neighbors’ testimony in Scott Cnty. Lumber Co., a municipal entity

may consider neighborhood opposition when it is based on something more concrete than

non-specific neighborhood opposition. See Roselawn Cemetery v. City of Roseville, 689

N.W.2d 254, 260 (Minn. App. 2004) (“A city council is free to disregard an expert’s

opinion when it is presented with conflicting non-experts’ opinions, including those of

area residents, so long as the reasons are concrete and based on observations, not merely

on fear or speculation.”); SuperAmerica Grp., Inc. v. City of Little Canada, 539 N.W.2d

264, 267 (Minn. App. 1995) (listing cases involving preference for non-expert,

landowners’ opinions over expert opinions), review denied (Minn. Jan. 5, 1996). In

contrast to Scott Cnty. Lumber Co., in RDNT, LLC, the supreme court determined that the

city’s consideration of “detailed factual complaints from the neighborhood,” in addition

to traffic studies and engineer testimony stating that traffic would increase, provided a

sufficient factual basis to determine that the increase in traffic would harm or injure the

neighborhood, public health, safety, and welfare. 861 N.W.2d at 77. The CUP applicant

argued that the city had no factual basis to deny the application because the streets were

not near capacity as acknowledged by the city’s engineer and a consulting group. Id. at


                                            15
76.   In upholding the denial of the CUP, the supreme court noted that “the City

determined that street capacity alone was not dispositive as to whether an increase in

traffic injures the neighborhood or otherwise harms the public health, safety, and

welfare.” Id. at 77.

       Here, it is uncontested that the proposed use of the property will result in noise

audible by all neighboring properties. The neighborhood opposition to the mounted

shooting was based on neighboring residents’ personal experiences with the resulting

noise and increase in traffic caused by the mounted shooting events. In 2008, August

built the arena on his 20-acre tract of property less than 500 feet from neighboring homes.

Without obtaining a CUP, August has hosted mounted shooting competitions since 2011.

Residents of the neighboring properties described their personal experiences with the

noise caused by 1,500 to 2,000 of fired rounds per weekend.              Accordingly, the

observations and comments are not speculative, and the county board properly relied on

these statements in its determination.

       Furthermore, members of the planning commission visited the property and

heard, firsthand, the noise caused by the mounted shooting events and relied on these

observations when making their recommendation. In sum, the county board reasonably

relied on the landowners’ concerns and planning commission members’ observations and

therefore had a sufficient factual basis to determine that the increase in noise would

adversely affect the neighborhood. Thus, the county board’s decision to deny the CUP

was not unreasonable, arbitrary, or capricious.




                                            16
                                            II.

       August, on appeal, contends that he is entitled to attorney fees under Minn. Stat.

§ 549.211 (2014). Rule 139.06, subdivision 1, of the Minnesota Rules of Civil Appellate

Procedure requires a party seeking attorney fees to submit a motion for the requested fees

under rule 127. In addition to a separate motion, the rule mandates that the motion for

fees “must include sufficient documentation to enable the appellate court to determine the

appropriate amount of fees.” Minn. R. Civ. App. P. 139.06, subd. 1. Here, August did

not file a motion for attorney fees nor did he provide the court with an appropriate

calculation of his fees. Accordingly, an award of attorney fees is not appropriate here.

See Johnson v. Johnson, 627 N.W.2d 359, 364-65 (Minn. App. 2001) (declining to award

a party attorney fees when party did not request fees by motion).

                                     DECISION

       Because the county board did not err in considering noise that did not reach the

decibel levels promulgated by the MPCA, and its decision was supported by a sufficient

factual basis, its denial of August’s CUP was not unreasonable, arbitrary, or capricious.

       Affirmed.




                                            17
