In re Block, A06-387.

• Decision Date: 06 February 2007
• Docket Number: No. A06-518.,No. A06-387.,A06-387.,A06-518.
• Citation: 727 N.W.2d 166
• Parties: In the Matter of an Application by Harvey BLOCK and Gary McDuffee for a Conditional Use Permit.
• Court: Minnesota Court of Appeals

727 N.W.2d 166

In the Matter of an Application by Harvey BLOCK and Gary McDuffee for a Conditional Use Permit.

No. A06-387.

No. A06-518.

Court of Appeals of Minnesota.

February 6, 2007.

Marshall H. Tanick, Teresa J. Ayling, Beth Erickson, Mansfield, Tanick & Cohen, P.A., Minneapolis, MN, for relators Roger E. Nelson, et al.

Richard D. Snyder, Sten-Erik Hoidal, Fredrikson & Byron, P.A., Minneapolis, MN and Timothy J. Shields, Richfield, MN, for relator Minnesota Federated Humane Societies.

Conrad Freeberg, Morrison County Attorney, Little Falls, MN and Michael T. Rengel, Pemberton, Sorlie, Rufer & Kershner, P.L.L.P., Fergus Falls, MN, for respondent Morrison County.

Konstandinos Nicklow, Meshbesher & Spence, Ltd., Minneapolis, MN and Douglas P. Anderson, Rosenmeier, Anderson & Vogel, Little Falls, MN, for respondent Gary McDuffee.

Considered and decided by HALBROOKS, Presiding Judge; RANDALL, Judge; and STONEBURNER, Judge.

OPINION

RANDALL, Judge.

In these consolidated certiorari appeals, relators Roger and Deborah Nelson and Jeremy and Sarah Dickman (the Nelson relators) and the Minnesota Federated Humane Societies (MFHS) seek review of respondent Morrison County Board of Commissioners' decision to grant a conditional use permit (CUP) to respondent Gary McDuffee to operate a dog-breeding facility. The Nelson relators argue that the county board's issuance of the CUP was arbitrary, capricious, or unreasonable; that the county board violated county ordinances and likewise was arbitrary, capricious, or unreasonable when it sua sponte modified the CUP; and that they were entitled to a new hearing based on new evidence. MFHS contends that the inclusion of a debarking condition was arbitrary and capricious, and that the board acted arbitrarily by failing to consider whether a large number of dogs could be humanely kept at the facility. We reverse and remand.

FACTS

In late 2005, Gary McDuffee was interested in purchasing 40 acres of land from Harvey Block¹ in Morrison County, Minnesota, where he planned to relocate his professional dog-breeding facility. The land is zoned agricultural, and dog kennels are a permitted use with a conditional use permit (CUP).

On November 8, 2005, Block and McDuffee filed a request for a CUP. As part of the application, McDuffee completed the conditional use criteria questions, which track the criteria for granting CUPs set out in the Morrison County land use ordinance. Morrison County, Minn., Ordinances 507.2. McDuffee indicated that he planned to relocate his professional dog-breeding business from elsewhere in Morrison County to the land at issue, where he planned to raise and sell puppies to be sold in pet stores nationwide. He estimated that he would have two to three full-time employees. A professional contractor would construct the building. He noted that he had operated dog kennels elsewhere in Morrison County under a CUP for the past 24 years and that his business would be licensed and inspected by the United States Department of Agriculture (USDA). He indicated that all adult dogs would be "debarked" to alleviate the noise.

McDuffee also submitted several letters in support of his CUP application. First, he submitted four letters from neighbors of his previous kennels who spoke well of him and his business. He also submitted four letters from people who would be his neighbors at the new location who did not object to his proposal. A letter from his accountant indicated that his business would be well run and profitable. A letter from his long-time veterinarian, Dr. Charles Extrand, indicated that McDuffee's previous facilities were well run and also addressed the issue of debarking.

Noise generated from a dog kennel can be a very serious environmental factor and could affect surrounding inhabitants. With this in mind, Gary has contacted me about doing a debarking procedure to lower the noise volume. Contrary to what animal activists claim, this procedure does not "silence" a dog but rather lowers the high pitch[ed] sounds.

The Morrison County Planning Commission published notice of the public hearing on December 4, 2005, and mailed a notice to the ten closest owners. The notice invited participation at the hearing and also invited the submission of written comments. Planning commission staff prepared an opinion/recommendation for the hearing before the planning commission as follows:

The applicant requires a conditional use permit to operate a dog kennel. The applicant operated a kennel in Cushing Township which was approved in 2001. The proposed kennel would breed and raise dogs for sale. A large housing barn is being proposed on the site. The applicant did not indicate the number of animals that are being proposed at the site. The Cushing site had a maximum cap of 800 adult dogs. There are neighbors within 900-1,000 feet from this proposed site. We have also received concerns from neighbors regarding this proposal. It is our understanding the animals are mostly confined to the barn and there is minimal exposure to the outside. It is indicated that those dogs outside will be debarked. A septic system is being proposed by the applicant. There appears to be tillable land for manure application. The property also has some wetlands. The ordinance does not have any specific standards for kennels. The conditional use criteria questions must be satisfied.

On December 9, 2005, relator Roger Nelson, who is one of the neighbors who was notified, filed a citizens' petition asking the township supervisors and county commissioners to vote against the proposed CUP for the dog kennel and requesting that an environmental assessment worksheet (EAW) be completed. In his letter to the Minnesota Environmental Quality Board (MEQB), Nelson referred to the fact that the property is bordered on one side by a stream leading to several lakes and on another side by a wildlife pond and pool. In a December 14 communication to the MEQB, Nelson indicated that the U.S. Fish and Wildlife Service expressed concerns that $15,000 had been spent in that area to benefit the natural habitat and Nelson indicated the dog facility may have a huge impact through noise, pollution, and waste disposal or runoff.

On December 14, the district manager for the Morrison County Soil and Water Conservation District sent a letter to the MEQB indicating that a 600-dog structure would produce a sizable amount of animal waste. Consequently, the manager found it appropriate that soil tests and manure testing be required, as in situations in which an agricultural producer is expanding or applying for a new or expanded feedlot permit. She also indicated that there would be questions as to how long the adjoining fields could sustain the dog feces application, the environmental effects on the shallow water table over a prolonged period of time, and the setback from water features. On December 20, the MEQB determined that Morrison County was the appropriate governmental unit to decide whether to require an EAW for the proposed dog-breeding facility.

The Morrison County Planning Commission hearing at which the CUP application was addressed was held on December 19, 2005. At the meeting, McDuffee said he wanted a 600-dog cap for adult breeding dogs. He expected they would have about 500 puppies in the first year and more in years later. The 600 limit applies only to breeding dogs. No cap was proposed for the number of puppies and nonbreeding dogs in the CUP. McDuffee said that the dogs to be bred would be Cocker Spaniel size or smaller, averaging ten pounds. Any adult dogs allowed outside would be debarked. Regarding dog waste, McDuffee said that he planned to rake it and stockpile it on a slab in the winter. In the spring, a neighbor would spread it on his fields following USDA guidelines.

Dr. Extrand, McDuffee's long-term veterinarian, stated that McDuffee's kennels had always been in compliance with USDA and state regulations. He testified that he has debarked about 10,000 dogs, in an operation in which the dogs' vocal cords are "removed" while they are under anesthesia. One of McDuffee's kennel employees said that McDuffee gives great love and care to the dogs.

The planning commission heard testimony in opposition to the CUP. A Belle Prairie Township supervisor opposed the request, citing major complaints that the township had received regarding an existing kennel. One neighbor expressed concerns and opposed the request. Relator Sarah Dickman, who lives across the road, expressed concerns regarding noise and odor. She added that she is with the Animal Humane Society, which has received many complaints about the Cushing kennel site, including reports of injured and sick animals and bad living conditions. Relator Roger Nelson, who lives about 100 feet away from the property line, testified that he was very concerned about the environmental effects.

The planning commission then addressed the seven criteria for the CUP, using a checklist, with eight members voting in favor of the CUP and one abstaining. The planning commission also imposed three conditions: that a privacy fence be installed on one side, that there be a cap of 600 adult breeding dogs, and that all dogs kept outside be debarked.

On January 10, 2006, the county board of commissioners held a meeting to consider the citizens' petition for an EAW and to review the planning commission's recommendation that the CUP be granted. The board unanimously decided that an EAW was not needed for the proposed dog kennel. Later, the board considered the CUP for the dog kennel. McDuffee was in attendance and in response to questions explained that there would be no more than 600 adult breeding dogs, including male and female, and these would be debarked. He explained that puppies would not go outside. The board approved the CUP subject to the three conditions proposed by the planning commission.

After the CUP was issued to McDuffee and after the formal record was...