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solar panels farm and agriculture fields in aerial view.
A decision by the Stearns County Board of Commissioners denying an application for a temporary permit for a solar farm was affirmed in In The Matter Of The Application Of USS Great River Solar LLC. ( image)

Perspectives: Zone defense: Government units prevail here

“[F]rom zone to zone … will led my steps aright.”

 —William Cullen Bryant, “To A Waterfowl” (1818)

As the Minnesota Vikings cruise toward the National Football League playoffs as legitimate Super Bowl aspirants to reach that vaunted LVII game in Glendale, Arizona — and to win it —the team will need to shore up its pass defense stemming from the new zone-type defense installed by the team’s new coaching staff. The scheming has resulted in the team having yielded the most passing yardage in the NFL and made the club’s secondary as porous as a proverbial slice of Swiss cheese, a characterization that would be an insult to those football devotees who wear decorative cheese-like apparel on their heads (here’s looking at you, Packers fans!).

But zone defenses work much better in land use litigation here, as reflected in a pair of rulings within the past few months by the Minnesota Court of Appeals. The two matters addressed diverse land use cases in Greater Minnesota, including a proposed solar farm and a town’s refusal to maintain a little-used road.

In both cases, the claims asserted by the respective commercial and residential landowners turned out to be not effective, and the defenses raised by the zoning authorities prevailed.

Solar suit

A decision by the Stearns County Board of Commissioners denying an application for a temporary permit for a solar farm was affirmed in In The Matter Of The Application Of USS Great River Solar LLC, 2022 WL 4295368 (Minn. Ct. App. Sept. 19, 2022)(unpublished).

The applicant sought an interim-use permit for a one megawatt solar farm to be located on farmland next to an existing solar farm that was already on the same property, which was zoned agricultural, but allows solar farming if the project meets certain conditions. A county planning commission recommended denial of the request, and the county board, after a public hearing, upheld that determination on a 2-2 vote, with one of the five members absent, resulting in a split-vote denial.

On certiorari, the appellate court affirmed, rejecting three claims asserted by the solar farm seeker.

One contention was that one of the two board members voting for denial did not state a reason for his vote, which warrants granting the application as a matter of law under Minn. Stat. § 15.99, subd. 2(b). The record of the proceeding before the county board reflected that one of the objecting members stated his reasons, and the other did so likewise, although “those reasons may not have been expressed … in a succinct fashion … [but] they can be understood in the context of the full discussion” of the board. The record reflected that because there was adequate information about the reasons for denial, the board complied with “the requirements and purpose” of the required reasoning under the statute.

The board’s decision was also based on legally sufficient reasons, including the conflict between the permit application and the county zoning ordinance, the nonconformance of the application with certain “goals and policies” of the county’s comprehensive plan, and significant policies conflicting with some of the adjacent parcels. The board’s determination that the proposal did not conform with certain portions of the comprehensive plan was a sufficient “legal basis for denial,” and the language in the comprehensive plan was “not unreasonably vague or subjective.”

Further, the determination by the board that the solar farm would not be “consistent with the general purpose and intent” of its zoning ordinance and inconsistent with the adjacent farmland, constituted legally sufficient bases for denying the request.

There was ample support in the record for those determinations, including that noncompliance with the project did not comply with the goals in the comprehensive plan to “strengthen and retain highly valued agricultural land,” which constitutes a “legitimate consideration in making that determination” denying the requested permit. While there were “many facets of the plan that conform to some of the comprehensive plan’s goals and policies,” the record reflected more than one legally sufficient basis for denial of the proposal. Based upon the differential standard of review, the board’s decision was neither “legally insufficient” or without a factual basis in the record, warranting upholding its erroneous denial of the solar farm proposal.

Road Rage

A couple’s rage over the refusal of a township to maintain an unused road that ran into their property in Hillman Township did not sway the court of appeals, which grudgingly upheld the determination by the township to deny the homeowner’s request to maintain the portion of the road running to their home in Chrisman v. Hillman Township, 2022 WL 3581816 (Minn. Ct. App. Aug. 22, 2022)(unpublished). The Kanabec County District Court ordered the township to maintain the northern portion of a town road, but the Court of Appeals reversed and upheld the decision not to do so under Minn. Stat. § 365.10, which gives a township authority to determine the maintenance for an “abandoned road,” which is defined as a road that has had no maintenance for at least 25 years.

The couple that brought the case lived in a home on a dead-end gravel road that also serves two adjoining properties. Snowplowing and other maintenance was not being performed on their portion of the road, while maintenance was done on the southern portion of the street. A petition for maintenance on their section of the road was denied by the township, and the couple sued for a declaratory judgment to clarify their rights and require maintenance of the northern portion of the road, which the trial court upheld following a bench trial.

That ruling was erroneous, according to the Court of Appeals, which pointed to the “unambiguous” language of the statute. The trial court’s decision was erroneous because it conflicted with “binding precedent.” Further, because the road and bridge had not been maintained for more than 25 years, prior case law warrants a determination that the township “has no duty to maintain the road under Hagen v. Windemer Township, 935 N.W.2d 895 (Minn. App. 2019) rev. den’d. (Minn. May 6, 2019).

Further, the lower court erred by interpreting the abandonment statute on the basis of language in a different statute, Minn. Stat. § 160.095, which is a separate statute from the abandonment statute and is unrelated. The interpretation granting discretion to the township board to not maintain the abandoned portion of the road did not “lead to an absurd result.” The trial court’s determination that the proponents of maintaining the road were “stranded” is erroneous because the road in question was the only means of access to the home from a county road, the record did not include evidence of other means of access, which could have been addressed through a petition for a cartway for landlocked property, pursuant to Minn. Stat. § 164.08, subd. 2.

While rejecting the homeowners’ request, the court empathized with the couple to [their] arguments that the township is “displaying gamesmanship” because its maintenance of the southern portion of the road favored established residents over new residents. That the homeowners were upset is understandable as they were treated differently than their neighbors “when it comes to maintenance of the road leading to their home.”

Notwithstanding this “sympathy,” the plain, unambiguous language of the 25-year abandonment statute dictates upholding the township’s decision not to maintain that section of the road that had been “abandoned” for so long a period of time.

The homeowners, understandably “frustrated,” did not give up, taking their case to the Supreme Court with a petition for review.

These cases reflect the obstacles that plaintiffs face in challenging zoning decisions made by government authorities, either due to the high standard of a certiorari review, as in Great River Solar or the express language of the language statute as in the Chrisman case.


Procedures For Written Zoning Requests

  • Agency must approve or deny within 60 days.
  • Or within 120 days if the agency supplies applicant with written notice of reasons for extension of time.
  • Denial of request must include express reasons for refusal.
  • Failure to approve or deny within deadlines constitutes approval as a matter of law.

Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.

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