Interstate Power Co. v. Nobles Cty. Bd., No. C4-98-1607.

• Citation: 617 N.W.2d 566
• Decision Date: 12 October 2000
• Docket Number: No. C4-98-1607.
• Parties: INTERSTATE POWER COMPANY, INC., a Delaware corporation, Appellant, v. NOBLES COUNTY BOARD OF COMMISSIONERS, Respondent.
• Court: Supreme Court of Minnesota (US)

617 N.W.2d 566

INTERSTATE POWER COMPANY, INC., a Delaware corporation, Appellant, v. NOBLES COUNTY BOARD OF COMMISSIONERS, Respondent.

No. C4-98-1607.

Supreme Court of Minnesota.

October 12, 2000.

Phillip A. Kohl, John T. Hareid, Kevin H. Siefken, Christian & Peterson, P.A., Albert Lea, for petitioner.

Jay T. Squires, Ratwik, Roszak & Maloney, P.A., Minneapolis, for respondent.

Samuel L. Hanson, Michael C. Krikava, Briggs and Morgan, Minneapolis, for amicus curiae.

Heard, considered, and decided by the court en banc.

OPINION

BLATZ, Chief Justice

Appellant Nobles County Board of Commissioners ("Board") denied the application of Respondent Interstate Power Company ("Interstate") for a conditional use permit ("CUP") to upgrade an electrical transmission line. The denial was based in part on an amendment to the applicable county zoning ordinance that was adopted by the Board after the Board initially approved the CUP with a special condition. An appeal of that action was remanded by the court of appeals for findings sufficient to enable judicial review. The court of appeals affirmed the Board's denial of Interstate's application and dismissed for lack of jurisdiction Interstate's challenge to the amendment of the zoning ordinance.

Although we agree with the court of appeals that Interstate's challenge to the general validity of the zoning amendment cannot be reviewed on a writ of certiorari, the application of the amendment to this specific project is within the proper scope of certiorari review of the Board's action on the CUP. In the particular circumstances of this case, the amendment cannot be applied to this project, and the other grounds relied on by the Board in denying the CUP are beyond the permissible scope of the remand. Therefore, we reverse.

Interstate is a Delaware corporation doing business in southern Minnesota, including Nobles County.¹ Interstate has a 34kV (kilovolt) transmission line in Nobles County near Wilmont, a three-mile portion of which Interstate proposes to upgrade to 69kV in order to improve reliability. One and one-quarter miles of the three-mile project are in the City of Wilmont and are not involved in this appeal. The remaining 1.75 miles of power lines and poles are located in easements owned by Interstate adjacent to the public right-of-way on County Roads 34 and 69. During the proposed upgrade, some of the poles and lines would be moved to newly-acquired easements, while others would remain in the easements in which they are currently located.

On June 16, 1997, pursuant to the Nobles County zoning ordinance, Interstate applied for a CUP in order to undertake the project. A CUP was necessary because the transmission line is located in an area that Nobles County designated as an "Agricultural Preservation Zone," and a transmission line in excess of 34kV outside the public right-of-way in such a zone is a conditional use.

On July 14, 1997, the Nobles County Planning Commission ("Commission") held its first public hearing on Interstate's CUP application. The county zoning administrator stated that the purpose of the CUP ordinance related to "concerns of higher costs to road projects by having to reroute utilities, which were directly outside the road right-of-way." According to the county highway engineer, the Board wished to keep utilities within the right-of-way so that the utility company would be responsible for the costs of relocation rather than the county, which had "already experienced having to brunt [sic] the cost of relocating a utility" which "can be very costly."² He stated his belief that it was unfair to force the taxpayers of Nobles County to bear the cost of relocation. Conversely, a representative of Interstate stated it was unfair to force the customers of Interstate to pay for relocation when it was the county who may wish to have the lines moved. After discussion, the Commission unanimously recommended approving the CUP outside the right-of-way with the "special condition that Interstate Power Company be responsible for any necessary relocation of their utilities and all costs incurred."

On July 22, 1997, the Board adopted the Commission's recommendation to approve the CUP with the special condition over Interstate's objection. Because of the special condition, Interstate did not accept the CUP, postponed the proposed upgrade project, and appealed the decision.

Interstate sought review of the Board's decision by writ of certiorari in the Minnesota Court of Appeals. Because the Board's approval of the CUP included the special condition that was known to be unacceptable to Interstate, the court of appeals deemed the Board's action to be a de facto denial of the permit. See Interstate Power Co., Inc., v. Nobles County Bd. of Comm'rs, No. C5-97-1704 (Minn. App. Apr. 29, 1998) (order opinion) (Interstate I). The court explained that the Nobles County zoning ordinance requires the Board to make specific findings in granting a CUP and that Earthburners, Inc. v. County of Carlton, 513 N.W.2d 460, 463 (Minn.1994), requires a county board to make written findings explaining its rationale when it denies a CUP, with specific reference to relevant provisions of the zoning ordinance. Because no such findings were provided, the court of appeals held that the record was insufficient to conduct judicial review and therefore remanded for "additional proceedings and appropriate findings." Interstate I, slip op. at 3. The court also took note of the comments at the Commission meeting regarding higher costs and stated that the police power in zoning matters is limited to "acts that promote the health, comfort, safety, and general welfare of society and does not embrace revenue measures." Id.

After remand, on June 24, 1998, the Commission held a hearing on an amendment to the county zoning ordinance relating to required setback distances for essential services, such as transmission lines. No specific property owners, including Interstate, were given formal written notice of the hearing by the county. No Interstate representative attended. The proposed amendment required essential services that are not in the public right-of-way to be set back from the centerline of the road the same distance as is required for buildings. The setback required in an Agricultural Preservation Zone is 100 feet. See Nobles County Ordinance ("NCO") § 603.5(2)a (1996, amended July 7, 1998). The public right-of-way in this case generally extends 50 feet from the centerline of the road, so the transmission lines would need to be placed approximately 50 feet into private land if they were not in the public right-of-way. Minutes from the hearing reflect only one stated reason for considering the proposed amendment:

[Nobles County Zoning Administrator Larry] Gasow explained that [the amendment] was because the Interstate Power Company appealed the decision of the Board of Commissioners due to a condition put on that Conditional Use Permit involving the setbacks and the right-of-way of the road. The appellate [sic] judge has given us another chance to re-do the hearing with the Interstate Power Company. He stated that we need to give reasons for our conditions, and monetary reasons are not enough. Attorney Jay Squires suggested these changes in the setbacks for essential services in our ordinance.

A motion to approve the amendment carried. On July 7, 1998, the Board considered and adopted the amendment.

Later that day, the Commission and the Board convened for a combined special hearing to reconsider Interstate's CUP application. Representatives from Interstate were present during the meeting and upon learning of the amendment, objected to it on various legal grounds.

The county engineer stated that the highway department planned to improve Highway 34 and a portion of County Road 69 in order to reslope some of the area to help eliminate drifting snow in the winter. He testified that having the electric poles 2 feet from the right-of-way in Interstate's easements would "definitely cause some difficulty for the highway department." He also explained the county's program to systematically acquire slope easements as county roads are improved in order to combat the negative impact of drifting snow on public safety and emergency vehicle travel. He further stated that if poles were placed in areas needed for slope easements, the county could be hindered in its efforts to acquire easements, thereby directly affecting the health, safety, and welfare of the community. In addition, he stated that the pole placement might negatively impact the county's ability to widen a road.

A local farmer addressed the Commission and stated that he was opposed to having poles outside the right-of-way because of the interference with farming and because he believed that the poles devalued the property.

The commissioners and Interstate then discussed the possibility of locating the poles in the public right-of-way. Interstate acknowledged that use of the right-of-way was possible but stated that it preferred to be outside the right-of-way because it "keeps people away from their lines."

A suggestion to postpone placing the poles until after the proposed roadwork was completed was also rejected. The county engineer stated that although the present slope adjustment might be satisfactory for a long time, the idea of what the ideal slope is might change, so there is no guarantee that future slope adjustment would not be needed. Later in the hearing it was stated that the work on High-way 34 had already been completed.

The county zoning administrator explained the three options available to Interstate: (1) put the poles in the right-of-way; (2) set the poles back 100 feet from the centerline of the road; or (3) apply for a variance. He told the Commission that it should consider Interstate's refusal to accept the special condition to pay for relocation of the poles and explained that based on the opinion of the...