Earthburners, Inc. v. County of Carlton
| Decision Date | 18 March 1994 |
| Docket Number | No. C5-93-110,C5-93-110 |
| Citation | 513 N.W.2d 460 |
| Parties | EARTHBURNERS, INC., Respondent, v. COUNTY OF CARLTON, Petitioner, Appellant. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
In the absence of any articulated basis for the denial of Earthburners' application for a conditional use permit, the matter is remanded to the Carlton County Board for its reconsideration. White Bear Rod and Gun Club v. City of Hugo, 388 N.W.2d 739 (Minn.1986).
James M. Ross, Jr., Carlton, for appellant.
Robert C. Maki, Duluth, for respondent.
Carla Heyl, League of MN Cities, Shoreview, for amicus curiae.
Heard, considered, and decided by the court en banc.
We granted the petition of Carlton County to consider whether the proceedings of its county board were in compliance with Carlton County, Mn. Ordinance 6, Sec. 20 (Aug. 1, 1978), with respect to Earthburners, Inc.'s application for a conditional use permit. Because we conclude that the proceedings were deficient, we reverse and remand for the board's reconsideration of the application.
Earthburners is interested in operating a "soil roaster" in Carlton County on leased land currently used as a gravel pit. The facility is designed to heat dirt collected from service station sites in order to remove the oil and gas in the soil. As the soil dries, a "drop out box" and "baghouse filter system" catch emissions. Once purified, the soil may be mixed with gravel for use in road construction and repair or, if further refined, used for "common fill." Earthburners applied to the Minnesota Pollution Control Agency for, and was granted, an air emission permit on December 17, 1991.
Thereafter, on January 7, 1992, Earthburners applied to Carlton County for a conditional use permit. Bruce Benson, county zoning administrator, recommended approval with certain specified conditions. The county planning commission then held a public hearing on February 5 to consider, among other matters, Earthburners' application. Terry Anderson, Earthburners' president, and the company's attorney, Robert Maki, were present at the hearing, during which several local residents offered complaints about lack of notice and insufficient information, while others expressed their fears about the project's impact on the area because of increased truck traffic, possible pollution and danger to children. One resident was concerned that the location of the facility would result in a devaluation of her property for its upcoming sale. None of the residents present made detailed statements, but an attorney read a letter submitted by a non-resident landowner, Professor Andrew McFarland, who, after extensive study of air and ground pollution, offered general criticisms. The commission unanimously voted to recommend denial of the application.
Two days after the planning commission hearing, Earthburners provided the county board with a detailed written response to the issues and concerns which had been raised, in which the company's president assured the board that Earthburners "welcomes close supervision" and conditions on the permit's issuance. He recommended a test period and offered specific remedies to minimize soil spillage, excessive dust and other problems identified by the objecting landowners. Earthburners also agreed to operate the soil roaster only on a 40-acre tract on the leased land. Presumably, the concessions proffered by the permit applicant were intended to be incorporated in the ultimate permit, if issued, but it is unclear whether a formal amendment of the application took place or whether the county zoning administrator concurred.
The Carlton County Board considered the permit application on February 11. While there were no scheduled speakers, the chair apparently anticipated another lengthy hearing and took steps to limit discussion:
[W]e have lots of visitors, * * * * We don't want to go over another meeting like we had the other night * * * * [W]e had 150 people there, we spent in excess of 2 hours dealing with both sides of the issue, mostly the [objections,] and I don't think that it is necessary [to] go through that again * * * * [W]hat I would like to do, if this is acceptable with the Board, is to have each side * * * speak for no more than 5 minutes * * * [and then] have the Board members ask questions.
Maki offered to "let the opposition go first" so he could answer their questions. One resident again complained of anticipated excessive vehicle traffic and possible soil spillage and the non-resident landowner, through counsel, reiterated his concerns. Maki responded to each.
The chair first suggested that a postponement of the issue might be in order, but then moved the proceedings forward, inviting questions from board members who had not attended and voted at the planning commission hearing. After a general discussion, one board member complained of insufficient notice of the hearings and suggested that more discussion should have been required to fully inform the residents. Earthburners' representative acknowledged the need to inform the neighboring landowners and respond to their inquiries:
I am more than happy to schedule whatever public hearings to go to the [local] Township, to get all of the issues on the table and address. I think your concerns are proper, it's not fair for people not to know what's coming and if this Board wishes, we will take some more time, we will hold a meeting in the Township and we will address all concerns. [We're] not trying to ram it through * * * * [The goal was to] take issues raised [at the Planning Commission meeting] and give you all the information I could gather. My goal is not to walk out of here with a permit today. It is to give you answers to every question [that has been raised to this point] * * * * [M]aybe there are more questions [and] people need more time. I have no problem with that.
The following comment from the board chair demonstrates the inadequacy of the proceedings and the interlocutory nature of the decision which later issued:
[T]his whole thing is much more complex than we have the time to give it. * * * * [t]here are many questions to be answered and it is going to take more time than we have * * * today * * * * [M]y recommendation * * * would be to accept the recommendation of the Planning Commission and as we get smarter down the line * * * Earthburners [could] reapply for a permit.
Despite what appeared to be an indication of a willingness to either postpone or continue the matter so that more information could be provided or Earthburners could reapply or supplement its application, the board voted unanimously to accept the planning commission's recommended denial. The only stated reason for the denial was "public testimony presented in opposition."
Rather than resubmitting its application, Earthburners sought a declaratory judgment that the county board acted arbitrarily when it denied the...
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