Appeal comes down from Third Judicial District in case vs. Houston County Board of Adjustment

By Daniel E. McGonigle

General Manager

The Caledonia Argus

A ruling was handed down by the Third Judicial District in the appeal of the decision of the Houston County board of Adjustment, re: the appeal of Bryan Van Gorp, Susan Van Gorp, Cory Baker, Jackie Backer and Rosemary Iverson.

The matter came before the court for a motion for summary judgement on Oct. 24, 2016.

The defendants in the case, were Houston County, as well as interested observers, Michelle and Tracie Erickson and Bonanza Grain, Inc.

The appeal court found that the “timing of requirements were not exceeded and that the Houston County Board of Adjustment’s interpretation of the screening ordinance is affirmed.”

The plaintiffs were granted a summary judgement that “the Houston County Board of Adjustment’s application for equitable estoppel is in error” and “that the Houston County Board of Adjustment’s finding of legal non-conforming use is in error.”

Memorandum of facts

On January, 14, 1992, Houston County approved a conditional use permit for mining and extraction at the property located at 23148 Hwy. 16, Rushford (Erickson Mine).

After some time in which mining occurred on and off, Tracie and Michelle Erickson acquired the property in 2012.

A renewal of the CUP was requested on Nov. 1, 2012 and was renewed on July 1, 2014.

Part of the conditions on the CUP were that the landowner comply with all relevant local, state and federal regulations regarding mining on the property.

The property itself has frequently been the subject of litigation. The plaintiffs maintained regular contact with Houston County Zoning Administrator, Rick Frank.

Over time the plaintiffs alleged that the mining road was not within setback requirements and the property was not properly screened.

On Nov. 25, 2015, Mr. Frank notified the plaintiffs that no further action would be taken pursuant to the allegations of ongoing ordinance violations, and that this decision was final.

Issues

So the court considered the following issues:

• Was the statutory time limit of Minnesota Statute 394.27 exceeded by Houston County?

• Was the Board of Adjustment’s interpretation of the screening ordinance reasonable?

• Was the Board of Adjustment’s finding of non-conforming use of the mining road in error?

• What is the appropriate remedy?

The district court acts as an appellate court when reviewing a county decision.

“Generally [the court’s] review of a quasi-judicial decision is limited to an examination of the record made by the local zoning authority.” Big Lake Assn v. Saint Louis County Planning Comm’n 761 N.W.2d 487, 490 (Minn. 2009).

The court reviews the county’s decision only to see “whether there was a reasonable basis for the decision, or whether the county acted unreasonably, arbitrarily or capriciously.”

In headings in the findings, the court found that “the county did not exceed the statutory time limit.” They also found “The Board of Adjustment’s interpretation of the screening ordinance was reasonable.”

That “the Board of Adjustment’s finding of legal non-conforming use of the mining road was in error.”

And that “equitable estoppel is inapplicable to the instant case.”

Bryan Van Gorp pointed to language that the court used in its findings which read “In light of the heavy burden required of the BOA to find equitable estoppel, the record in this case to support such a finding is comparatively airy and the argument itself flimsy. Much is made of the fact that the ordinance violation was ongoing when the CUP was renewed and the County renewed the CUP anyways. This leads the court to the conclusion that the renewal is best characterized as a mistake. The record also does not indicate that Houston County even knew about this mistake.”

Van Gorp said in part “This leads the Court to the conclusion that the renewal is best characterized as a mistake. The record also does not indicate that Houston County even knew about this mistake.”

“This is what we have argued all along that the facts of the case were misrepresented to the County Board so that they voted on misleading information,” Van Gorp said.