Agate Lake Association, et al. Relators,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0778

Agate Lake Association, et al.
Relators,

vs.

County of Cass Board of Commissioners, et al.,
Respondents,

Birch Bay RV Resort, Inc.,
Respondent.,

Dale Spohn,
Respondent,

and

Jodi Spohn,
Respondent.

Filed May 15, 2017
Affirmed
Halbrooks, Judge

Cass County Planning Commission
File No. CU16-134-29-1

Mark A. Severson, Kurt W. Porter, Severson Porter Law, Crosslake, Minnesota (for
relators)

Paul D. Reuvers, Brian P. Taylor, Iverson Reuvers Condon, Bloomington, Minnesota (for
Cass County respondents)

Birch Bay RV Resort, Inc., Royalton, Minnesota (respondent)

2
Dale Spohn and Jodi Spohn, Royalton, Minnesota (pro se respondents)

Considered and decided by Cleary, Chief Judge; Halbrooks, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
HALBROOKS, Judge
Relators Agate Lake Association and Gull Chain of Lakes Asso ciation challenge
respondent Cass County Planning Commission’s (the planning commission) grant of a
conditional-use permit (CUP) to respondent Birch Bay RV Resort, Inc. (Birch Bay) ,
arguing that the planning commission abused its discretion because the evidence does not
support its decision. We affirm.
FACTS
Birch Bay purchased Birch Bay Golf Course and Resort, which is located on the
shoreline of Agate Lake . Agate Lake is approximately 150 acres in size with an average
depth of seven to eight feet. The resort consisted of ten private lakefront cabins , an inn
with seven lake-view rooms, and a golf course . Birch Bay plan s to redevelop the golf
course in order to create, in three phases, 170 recreational vehicle (RV) sites equipped with
water, elect rical, and sanitary sewer hookups to be used seasonally from May 1 to
October 1.
The county prepared an environmental assessment worksheet (EAW) that provided
a detailed overview of the proposed project and its potential environmental impacts.
Following public comment and further assessment, the planning commission determined
that an environmental impact statement (EIS) was not required. On February 18, 2016,

3
Birch Bay applied for a CUP for the first phase of the project . The planning commission
sought comment and held a public hearing on the CUP application at which members of
the public voiced their concerns. T he planning commission subsequently approved the
CUP application, making 17 findings and imposing 23 conditions, many of which were
responsive to comments received throughout the EAW and CUP processes. This certiorari
appeal follows in which relators seek a remand to the planning commission for additional
studies and preparation of an EIS.
D E C I S I O N
A county’s decision to grant or deny a CUP is a quasi-judicial act. Interstate Power
Co. v. Nobles Cty. Bd. of Comm’rs, 617 N.W.2d 566, 574 (Minn. 2000). “We will reverse
a governing body’s decision regarding a conditional use permit application if the governing
body acted unreasonably, arbitrarily, or capriciously.” RDNT, LLC v. City of Bloomington,
861 N.W.2d 71, 75 (Minn. 2015). “Our standard of review is a deferential one, as counties
have wide latitude in making decisions about special use permits.” Schwardt v. County of
Watonwan, 656 N.W.2d 383, 386 (Minn. 2003). And because zoning laws restrict the use
of private property, “[a] challenge to the approval of a CUP must meet a higher burden of
proof than a landowner’s challenge to a denial of a CUP.” Sunrise Lake Ass’n, Inc. v.
Chisago C ty. Bd. of Comm’rs , 633 N.W.2d 59, 61 (Minn. App. 2001 ); see also Bd. of
Supervisors of Benton Twp. v. Carver Cty. Bd. of Comm’rs , 302 Minn. 493, 499, 225
N.W.2d 815, 819 (1975).
“[C]ounties may approve conditional uses if the applicant satisfies the standards set
out in the county ordinance.” Schwardt, 656 N.W.2d at 387; accord Minn. Stat. § 394.301,

4
subd. 1 (2016). To show that the planning commission acted unreasonably, relators must
“establish that the proposal did not meet one of the standards set out in the [o]rdinance and
that the grant of the CUP was an abuse of discretion.” Id. In this case , t he relevant
ordinance provides:
The Planning Commission shall consider the following
evaluation criteria when reviewing conditional use
applications:

A. Evaluation of water bodies, rivers, and wetlands, and
also the topographic, vegetation, and soils conditions on
the site shall be made to ensure:

1. The prevention of soil erosion or other possible
pollution of Public Waters, both during and after
construction.
2. The visibility of structures and other facilities as
viewed from Public Waters is limited.
3. There is a complying [subsurface sewage
treatment system (SSTS)] present, or there is an
approved SSTS site evaluation and design for the
intended use of the property.
4. To limit or mitigate impact to designated critical
habitat.

B. Consistency with the policies and provisions of the
Comprehensive Plan and the intent, purposes and
requirements of the various ordinances.

. . . .

E. Degree to which the proposed use impacts natural,
scenic, or historic features of major importance.

F. Other factors specific to the application that impact
upon public health, safety, and welfare.

Cass County, Minn., Land Use Ordinance (CCLUO) § 705.2 (2014).

5
Relators contend that the planning commission’s decision to grant the CUP was
unreasonable, arbitrary, and capricious because it failed to consider the project’s effects on
Gull Lake1 as required under subdivisions A, B,2 E, and F of section 705.2 of the CCLUO,
and as expressed by the public during both the comment period and the public hearing
regarding the CUP.3
Relators also contend that the planning commission’s decision to grant the CUP was
unreasonable, arbitrary, and capri cious because it violated the CCLUO and CCCP by
failing to address the project’s effect on the water quality and safety of Agate Lake, which
the Minnesota Department of Natural Resources ( DNR) identified as concerns with the
project. CCLUO § 705.2(B). The record does not support this contention.
At the outset, and in order to clarify the scope of this matter on review, we note that
although r elators’ arguments encompass what they perceive to be the possible
environmental impact of the entire 170-site project, Birch Bay has been granted a CUP for
phase one only. That is what is before us on appeal. As required by the planning
commission, the other two proposed phases of the project will require separate CUPs. The
planning commission prudently specified that “[i]nformation gathered and outcomes

1 Gull Lake is a lake approximately 9,947 acres in size located about one mile from Agate
Lake.

2 The Cass County Comprehensive Plan (CCCP) identifies the following desired future
conditions: “[d]evelopment of lakeshore property with minimal natural resource impacts”
and “[l]ake access that does not degrade water quality.”

3 Relators concede that the planning commission stated reason s “in more than just a
conclusory fashion,” so they are sufficient for judicial review. See White Bear Rod & Gun
Club v. City of Hugo, 388 N.W.2d 739, 742 (Minn. 1986) (quotation omitted).

6
observed in the course of the initial phase or phases can be utilized to evaluate [the]
subsequent applications” that will only be accepted “after a two season interval between
each phase.”
The record before us reveals that the planning commission conducted a very
thorough decisional process. Pursuant to Minn. R. 4410.1000-.1700 (2015) and Minn. R.
4410.4300, subps. 1, 20a (2015), the county, as the responsible governmental unit, prepared
an EAW for the proposed project. In addition to examining the potential environmental
effects associated with a project, an EAW is also used to determine whether an EIS is
needed. Minn. R. 4410.1000, subp. 1. “An EIS shall be ordered for projects that have the
potential for significant environmental effects.” Minn. R. 4410.1700, subp. 1.
The EAW was made available for comment by publication in local periodicals,
placement on the county’s website, and distribut ion to interested parties and agencies. In
response, the county received 52 comments from citizens and six comment letters from
government agencies. Following the comment period, Birch Bay prepared detailed
responses to the comments. The planning commission then visited the project site and held
a special hearing.
Based on its review at that time, the planning commission decided to postpone a
decision on the need for an EIS. The planning commission directed the Environmental
Services Department (ESD) to obtain additional information from Birch Bay on 13 matters
of concern. A supplemental informational packet was then distributed to all written
commenters. The planning commission received 19 responsive comments.

7
Based on its review of the entire record, including the supplemental information
packet and the comments , the planning commission determined that an EIS was not
required. As stated by the planning commission:
4. Areas where the potential for significant environmental
effects may exist have been identified along with potential
mitigation measures that will be incorporated into the proposed
project design and permits.
5. Based upon M.R. 4410.1700 there are no potential
significant environmental effects that can be reasonably
expected to occur that cannot be addressed through the CUP
process conducted prior to each phase and that the preparation
of an EIS will only serve to further delay the final outcome of
the proposed project and cannot be expected to reveal
additional relevant and actionable information.
6. Therefore, based upon findings and items 1 -5 an EIS is
not required.

Relators focus on the concerns voiced by members of the public regarding the
project’s effects on Gull Lake. But “ [a] city may consider neighborhood opposition only
if based on concrete information.” Yang v. County of Carver, 660 N.W.2d 828, 833 (Minn.
App. 2003). Here, as respondents note, there was no concrete information underlying the
concerns.
The DNR responded with comments to the EAW, in which Birch Bay stated that its
patrons would be encouraged to trailer their boats to Gull Lake or other larger recreational
lakes in the area. The DNR did not raise any concerns regarding Gull Lake but did respond
with suggestions to mitigate the potential impact associated with increased boat use on
Agate Lake.
The potential ecological impacts that the DNR listed included an increase in
turbidity, an increase in internal nutrient loading, and a lower overall water quality and

8
species diversity. The DNR was also concerned that an increase in the number of boats on
the water might create a problem because many water-based activities directly conflict with
each other. To address these concerns, t he DNR suggested that the planning commission
limit watercraft access to Agate Lake; restrict mooring; centralize swimming areas, docks,
watercraft mooring, and launch ramps; and require pre servation of the native buffer on
Agate Lake.
The planning commission included 17 findings and 23 conditions in Birch Bay’s
CUP approval that address these concerns, including: restricting motorized watercraft
access, allowing no more than 12 motorized watercraft on Agate Lake at a time , limiting
permanent mooring, restricting the acceptable swimming area and mooring systems,
mandating invasive aquatic species inspections of all boats , requiring a veg etative
maintenance plan, requiring maintenance of the tree and vegetative buffers, and requiring
analysis of water quality in both Agate Lake and nearby wells. These conditions are
consistent with the DNR’s suggestions and address its ecological and safety concerns.
Because the planning commission considered the evaluation criteria set out in its
ordinances, based on our deferential standard of review, we conclude that the planning
commission properly exercised its discretion by issuing the CUP to Birch B ay for phase
one of its project.
Affirmed.