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Originally published in the December 2023 issue of Bench & Bar of Minnesota Environmental Law Update, Minnesota State Bar Association.

In a case primarily turning on county ordinance interpretation, the Minnesota Court of Appeals affirmed Grant County’s grant of a conditional use permit (CUP) to neighboring Stevens County. In the Matter of Stevens County for a Conditional Use Permit, No. A23-0159, 2023 WL 5696623 (Minn. Ct. App. Sept. 5, 2023). The CUP approved a subsurface drainage tile project to control lake water levels and mitigate flooding impacts.

The proposed project stemmed from concern about highwater conditions of Silver Lake, which would frequently cause flooding, service interruptions, and threatened damage to surrounding farmland. Silver Lake sits in both Stevens and Grant Counties, Minnesota. Stevens County proposed to construct a subsurface tile outlet that would increase the flow of water out of Silver Lake and into a neighboring lake located entirely in Grant County. Stevens County submitted a CUP application, pursuant to the direction of Grant County officials, to the Grant County Board of Commissioners seeking approval of the project. Stevens County’s CUP was approved with a myriad of conditions. Following the grant of the CUP, Stevens County appealed via a writ of certiorari, contending that (1) it never needed a CUP for the project; (2) the application was not properly reviewed by the Grant County Planning Advisory Commission before approval; and (3) alternatively, conditions on the CUP were unreasonable, arbitrary, and capricious.

The court rejected Stevens County’s first argument. It reasoned that the project required a CUP because it was classified as a conditional use pursuant to the Grant County Shoreland Management Ordinance. The court found some credence in Stevens County’s position that Grant County was unclear in identifying which ordinance provision necessitated a CUP for the project. However, the court held that multiple provisions of the Grant County ordinance nonetheless required a CUP for the project.

The court also rejected Stevens County’s second argument that a lack of review by the Grant County Planning Advisory Commission rendered the CUP void. All parties agreed that the commission did not review the CUP application. The court found that a Grant County ordinance provision regarding commission review was directory, which meant that Stevens County needed to show that bypassing commission review resulted in prejudice. Stevens County failed to make this showing, leading the court to conclude even though the Grant County board “did not follow the process outlined in the ordinance,…the board's failure to follow this process, which did not prejudice Stevens County, did not invalidate the CUP.”

Finally, the court found that the CUP conditions were reasonable, supported by the record, and related to the project—except for condition two, which required Stevens County to commit to a road construction project. Specifically, condition two required that “[b]oth Stevens and Grant County will coordinate and commit to a road project to be constructed within the 5 year road program…” The court explained that while the purpose of the CUP application was to preserve road use, the application was for a subsurface tile project, not a road project. The court agreed with Stevens County that condition two was unreasonable, arbitrary, and capricious and remanded the case with instructions for the Grant County board to reissue the CUP without condition two.

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