A Resolution Setting Forth Findings of Fact and Conclusions of Law and Order Denying S. M. Hentges & Sons, Inc. and Jordan Gravel, LLC Application for an Interim Use Permit for Aggregate Mining and Processing Operation in Sand Creek Township.

This opinion will be unpublished and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
A16-1768

A Resolution Setting Forth Findings of Fact and Conclusions of Law
and Order Denying S. M. Hentges & Sons, Inc. and
Jordan Gravel, LLC Application for an
Interim Use Permit for Aggregate Mining and
Processing Operation in Sand Creek Township.

Filed November 13, 2017
Affirmed
Kirk, Judge

Scott County Board of Commissioners
File No. PL2014-052

Aaron R. Hartman, Matthew S. Duffy, Mae J. Beeler, Monroe Moxness Berg PA,
Minneapolis, Minnesota (for relators S. M. Hentges & Sons, Inc. and Jordan Gravel, LLC)

Paul D. Reuvers, Jason Kuboushek, Nathan C. Midolo, Iverson Reuvers Condon,
Bloomington, Minnesota (for respondent Scott County Board of Commissioners)

Considered and decided by Bjorkman, Presiding Judge; Hooten, Judge; and Kirk,
Judge.
U N P U B L I S H E D O P I N I O N
KIRK, Judge
Relators-developers challenge respondent -county’s denial of their interim use
permit (IUP) application, arguing that the denial was arbitrary and capricious because the
county’s findings were not supported by the record and could have been adequately
addressed by imposing permit conditions. We affirm.

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FACTS
Project Description and Procedure Leading Up to the IUP Denial.
In an IUP application, under Chapter 10 of the Scott County Zoning Ordinance
(S.C.Z.O.), relators S. M. Hentges & Sons, Inc. and Jordan Gravel , LLC proposed to
operate an agg regate mine (the P roject) on an 87.5 acre parcel in Sand Creek Township
(the Towns hip), Scott County (the County) . The Project site is zoned Urban Business
Reserve (UBR) under the S.C.Z.O., a zone that allows mining as an interim use. Scott
County, Minn., Zoning Code, Table 20-4 (2016). Valley View Drive, an unpaved township
road, runs along the northwest side of the Project site, and U.S. Highway 169 is located to
the southeast of the Project site. The Project anticipated 10,000 annual hauling-truck round
trips, with up to 110 daily round trips.
Relators proposed to mine above and b elow the water table , forming a permanent
36-acre groundwater pond attached to the aquifer in the center of the Project site. The Scott
County Associat ion for Leadership and Efficiency Regional Training Facility (SCALE
Facility) for police and fire departments is located directly north of the Project site, and
includes a high-capacity pumping well on site to provide water for fire training exercises.
The Scott County Juvenile Alternative Facility (JAF) is located immediately northeast of
the Project site, and also has a public well. There is a 100-foot offset along Sand Creek to
the southeast of the Project site. Sand Creek has historically flooded multip le times per

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year and flooded three times in 2014. About two-thirds of the Project site is located in the
floodplain, and about one-half of the Project site is designated as floodway.1
Water-Related Issues.
During the study-phase before this permit application, it was noted that because the
Project site has been exclusively used as farmland, soil contamination or other
environmental hazards are unlikely, but that groundwater under the Project site may
contain elevated nitrates or traces of pesticides . The Minnesota Geological Survey
designated the proposed site as highly susceptible to groundwater contamination. Relators
noted that it was possible that the private water supply wells in the area of the Project site
would be affected by mining operations and the 36-acre pond, and said they would develop
a final monitoring and mitigation plan , subject to the County’s approval, in collaboration
with the Minnesota Pollution Control Agency (MPCA) and the Minnesota Department o f
Health (MDH) during the IUP process. Relators were expected to be financially
responsible for monitoring the groundwater quality during and after the mining operation.
County staff recommended that relators assume financial responsibility for monitoring and
implementation of necessary mitigation for 20 years after cessation of mining , or for one
year after a 100 -year flood event occurred with no detection of con tamination in
surrounding wells.

1 The S.C.Z.O. defines “floodplain” as “[t]he beds proper and the areas adjoining a wetland,
lake or watercourse which have been or hereafter may be covered by the regional flood.”
S.C.Z.O., ch. 1-7 (2016). The S.C.Z.O. defines “floodway” as “[t]he bed of a wetland or
lake and the channel of a watercourse and those portions of the adjoining floodplain which
are reasonably required to carry or store the regional flood discharge.” Id.

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The County completed an Environmental Assessment Worksheet (EAW) in
October 2009. Barr Engineering (Barr), a company hired by the County to complete an
Independent Groundwater Flow Modeling for the Project, issued a memorandum on March
31, 2011, that indicated that the SCALE Facility well and three private wells would be
affected by floodwater entering the aquifer via the 36 -acre pond. Barr could not predict
how significant the impact would be because it could not predict the composi tion of
floodwaters.
On April 5, 2011, the Scott County Board of Commissioners (the Board) determined
that the Project had the potential for significant environmental i mpacts related to truck
traffic and groundwater, and declared that an Environmental Impact Statement was needed.
The November 25, 2013 Final Environmental Impact Statement (FEIS) suggested drilling
replacement wells for the SCALE Facility, JAF, and a private well that was likely to be
impacted by contaminated floodwaters e ntering the aquifer. The FEIS noted that the
replacement wells would likely require water treatm ent to address water chemistry
concerns for boiler operation and water aesthetic s. It noted that point -of-use water
softening may be sufficient to address objectionable minerals and taste and odor issues.
On January 21, 2014, the Board determined that t he FEIS was inadequate because
it lacked an acceptable groundwater monitoring and mitigation plan, and an aquifer
degradation protection plan or mitigation plan. County staff then prepared a Groundwater
Monitoring and Mitigation Plan and Cost Estimate including the requirement that relators
provide financial security both during and after the mining operation. The County noted
that relators were only willing to fund replacement wells to avoid the groundwater

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pollution, and were unwilling to fund mitigation of floodwaters entering the aquifer. On
July 15, 2014, the Board found t he updated FEIS with the Groundwater Monitoring and
Mitigation Plan to be adequate.
At the July 15, 2014 Board meeting, it was noted that relators were willing to
monitor neighboring wells and to replace impacted wells, but would not agree to mitigate
floodwater entering the aquifer. Relators believed that because the mining operation would
not be the source of the pollution in Sand Creek’s floodwaters, relators should not be
responsible for the effects of that pollution on the aquifer via the 36-acre pond. The County
believed relators should be responsible for protecting the aquifer from contamination and
that the County should not have to bear the bur den of the loss of the aquifer or future
cleanup.
Relators’ IUP application was submitted on December 2, 2014 . The Township
recommended denial. After a public hearing on the application, the Scott County Planning
Commission (the Planning Commission) al so recommended denial. The Planning
Commission noted that as a condition of any IUP, relators would be required to continue
monitoring for groundwater contamination after mining ceased, and to provide security to
drill replacement wells and for water quality equipment for impacted wells. The Planning
Commission noted that the MPCA does not require thi s sort of financial security in

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conjunction with National Pollutant Discharge Elimination Systems (NPDES) permits, but
that the County would.2
Relators obtained an NPDES permit from the MPCA in April 2016 before bringing
their completed IUP application before the Board. Relators’ IUP application was
supplemented three times and was finalized on August 30, 2016. The resultant draft IUP
contained conditio ns relating to groundwater and well monitoring and mitigation and
financial security. When their IUP application was addressed at the September 6, 2016
Board meeting, relators noted that because their NPDES permit did not require monitoring
and mitigation of water aesthetics, relators would not agree to monitor or mitigate those
conditions, nor would they agree to provide financial security for well replacement or for
mitigation of declining water aesthetics.
Water-Related Findings in Support of Denial.
In denying relators’ IUP application, the Board found that relators failed to show
that the Project would not create a burden on public facilities and utilities, specifically on
wells serving the SCALE Facility and JAF. The Board also found that the Project posed a
public health and safety risk because it had the potential to impact the aesthetic quality and
water safety of a local private well and that relators refused to provide financial security
for future mitigation. The Board concluded that the risk of contamination of the aquifer

2 “Surface water and groundwater quality associated with the project will be regulated by
the [MPCA], specifically by the [NPDES] permit. The NPDES permit is required for all
mining operations and will specify the surface and groundwater monitoring locations, the
parameters and frequency of monitoring, water quality limits that must be adhered to, and
actions that need to [be] taken if the limits are exceeded. . . . [For the Project, s]hallow and
deep [monitoring] wells will both be installed. An existing bedrock aquifer well will also
be sampled and could be used as a basis if there ever is a concern of contamination.”

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and local wells was not acceptable in the face of relators’ refusal to provide financial
security or to agree to measures to mitigate water aesthetics.
The Board found that because the MPCA may choose to discontinue relators’
NPDES permit and its related groundwater monitoring before the Board is satisfied
regarding its water contamination concerns, and because the NPDES permit does not
address water aesthetics, it was insufficient to establish that the mining operation would
not burden p ublic facilities. The Board noted that relators initially proposed to provide
financial security, but then reversed their position. Because of this, t he Board concluded
that there were not adequate plans in place to address potential contamination of
neighboring wells, or to address the possible decline in water aesthetics if replacement
wells became necessary. The Board further noted that its Floodplain Ordinance prohibits
human-made berming in the Floodway District, so the County could not impose a
mitigation measure in the IUP to permanently block Sand Creek’s flood water s from
entering the aquifer through the 36 -acre pond. The Board found that the NPDES permit
did not provide the long-term oversight and financial security needed to avoid deterrence
of the use or development of adjacent land . The Board concluded that the permanent 36-
acre pond and the lack of planning and funding for future mitigation constituted an
impermissible public health and safety risk.
Before denying the IUP application, the Board concluded that it could not impose
sufficient conditions to ensure water quality , that relators did not meet the criteria for
approval under ch. 2-7-1 of the S.C.Z.O., and that the Project is inconsistent with the
County’s 2030 Comprehensive Plan.

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Traffic-Related Issues.
During the study-phase before this permit application, it was noted that mine-related
truck traffic will result in a maximum daily volume of 110 round trips per day dur ing
periods of peak production, and an average of 5 round trips per hour with a maximum of
11 round trips per hour during peak production. Relators estimated that 80% of the traffic
will be northbound and 20% will be east bound or southbound from the Project site. On
December 13, 2010, the City passed a City Council Resolution opposing truck traffic
passing through the City. The Project intended to primarily utilize Highway 169 and
Valley View Drive. Valley View Drive continues south from the Project site into the City
where it intersects with County Highway 9. The portion of Valley View Drive to the south
of the Project site includes approximately one mile of unpaved, aggr egate surface that
would not support hauling trucks. A pavement evaluation conducted on the paved portion
of Valley View Drive indicated that the paved portion was sufficient to support the
proposed truck traffic, but that the heavy truck traffic will contribute to deterioration of the
pavement and reduce its life cycle.
The FEIS described six haul-route options to accommodate the Project site. Each
option required infrastructure updates to township roads and/or Highway 169 and presented
various safety concerns. The cost of road improvements for each option ranged from
$300,000 to over $2 million. In order to obtain an IUP, the Planning Commission
recommended that relators be required to enter into a developer’s agreement with the
Township to make necessary improvements to Valley View Drive. Relators would also be
required to install any improvements to Highway 169 required by the Minnesota

9
Department of Transportation (MNDOT). The resultant draft IUP contained conditions
relating to road upgrades and maintenance and financial security.
Traffic-Related Findings in Support of Denial.
In denying relators’ IUP application, the Board found that relators failed to show
that the proposed use would not create a burden on public facilities and utilities, specifically
public roads. The Board found that it did not have the authority to require the necessary
updates to township roads, city streets, or state highways to accommodate the Project, and
that without an existing agreement with the Township and/or financial security to ensure
repair of those roads, the Board could not ensure that public roads would not be burdened.
Relators did not present the Board with any evidence, despite repeated requests, that the
outstanding roadway issues would be resolved. The Board also noted relators’ failure to
cooperate with t he Township when it attempted to resolve the outstanding haul -route
issues. Instead, relators merely announced to the Board that they would update the
township roads as indicated in their pavement evaluation.
Rather than presenting t he Board with a developer’s agreement with its IUP
application, relators stated that they would “negotiate” the terms of an agreement with the
Township regarding road updates and “contribute” to road improvements. The Board
found that the lack of a developer’s agreement, and relators’ refusal to agree to pay for
necessary roadway improvements, caused the Project proposal to be premature under the
County’s Comprehensive Plan.
The Board also noted that relators’ proposed use of Highway 169 presented safety
concerns that MNDOT could not require relators to address because the Project site does

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not directly enter onto Highway 169. The Board found that it lacked jurisdiction over the
highway so it could not impose an IUP condition requiring improvements to Highway 169.
The Boar d concluded that because relators did not provide the necessary information
regarding arrangements for updating Highway 169, the Board could not conclude that
public roadways would not be burdened by the Project . The Board also concluded that
relators failed to satisfy the criteria under ch. 2-7-1 of the S.C.Z.O. and denied relators’
IUP application.
D E C I S I O N
I. The Board’s denial of relators’ IUP application was not arbitrary and
capricious.

The decision of a county to grant or deny an IUP is quasi -judicial in nature and
reviewable by writ of certiorari. Interstate Power Co. v. Nobles Cty. Bd. of Comm’rs, 617
N.W.2d 566, 574 (Minn. 2000). Certiorari review is limited to an inspection of the record
developed by the governmental actor in reaching its decision and “is necessarily confined
to . . . whether the decision was ‘arbitrary, oppressive, unreasonable . . . or without any
evidence to support it.’” Stephens v. Bd. of Regents of Univ. of M inn., 614 N.W.2d 764,
769 (Minn. App. 2000) (quotation omitted), review denied (Minn. Sept. 26, 2000).
IUPs are not granted as a matter of right. Zylka v. City of Crystal , 283 Minn. 192,
197, 167 N.W.2d 45, 50 (1969). A county has broad discretion in deciding whether to
grant an IUP. See BECA of Alexandria, L.L.P. v. County of Douglas ex rel. Bd. of Comm’rs,
607 N.W.2d 459, 463 (Minn. App. 2000) (discussing a conditional -use permit). Whether
a decision about a land -use permit is reasonable “is measured by the standards set out in
the local ordinance . . . .” White Bear Docking & Storage, Inc. v. City of White Bear Lake,

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324 N.W.2d 174, 176 (Minn. 1982). Denial of an IUP “is arbitrary where the applicant
establishes that all of the standards specified by the zoning ordinance as conditions of
granting the permit have been met.” Yang v. C ounty of Carver, 660 N.W.2d 828, 832
(Minn. App. 2003). A county board’s decision is not arbitrary if any one of the reasons
provided satisfies the rational basis test. See Trisko v. City of Waite Park , 566 N.W.2d
349, 352 (Minn. App. 1997), review denied (Minn. Sept. 25, 1997). If an IUP was denied
without the governing body suggesting or imposing conditions that would facilitate
compliance, the denial may be arbitrary. Id. at 357.
On appeal, t he permit applicant bears the burden of showing that the governing
body’s denial is either legally insufficient or lacks a factual basis in the record. Hubbard
Broad., Inc. v. City of Afto n, 323 N.W.2d 757, 763 (Minn. 1982). “A legally sufficient
reason is one reasonably related to the promotion of the public health, safety, morals and
general welfare . . . .” BECA, 607 N.W.2d at 463 (quotation omitted).
Minn. Stat. § 394.303, subd. 1 (2016), defines an “interim use” as “a temporary use
of property until a particular date, until the occurrence of a particular event, or until zoning
regulations no longer permit it.” Minn. Stat. § 394.303, subd. 2 (2016), provides that:
The governing body m ay grant permission for an interim use
of property if: (1) the use conforms to the zoning regulations;
(2) the date or event that will terminate the use can be identified
with certainty; (3) permission of the use will not impose
additional costs on the public if it is necessary for the public to
take the property in the future; and (4) the user agrees to any
conditions that the governing body deems appropriate for
permission of the use.

Pursuant to the S.C.Z.O., “[i]n granting an interim use permit, the County Board
shall consider the effect of the proposed use upon the health, safety, and general welfare of

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occupants of surrounding lands.” Ch. 2-7-1 (2016). The Planning Commission and Board
are also required to make certain findings under ch. 2-7-1, which include that:
1. The use will not create a burden on public facilities and
utilities which serve or are proposed to serve the area.

2. The use will be sufficiently compatible with . . . adjacent
agricultural or residential land uses so that there wil l be no
deterrence to the use or development of adjacent land and uses.

. . . .

5. Adequate water supply, individual sewage treatment system
facilities, erosion control and stormwater management are
provided in accordance with applicable standards. . . .

The Board may also impose “additional conditions which the County Board
considers necessary to protect the interests of the surrounding area or the County as a
whole[,] . . . includ[ing] but not limited to . . . [a] financial guarantee consistent with Section
2-12 of this Ordinance to assure compliance.” S.C.Z.O., ch. 2-7-2 (2016). Section 2-12 of
the S.C.Z.O. provides that “the County shall be provided with a financial guarantee in the
form or a letter of credit or cash escrow approved prior to the . . . initiation of work on the
proposed . . . development. Said security shall gua rantee conformance and compliance
with the conditions of the application approval and County ordinance provisions.” Ch.
2-12 (2016). The section further provides that “The County shall hold the security until
completion of the proposed . . . development and a certificate of compliance with the
application conditions and County ordinance provisions has been issued by the Planning
Department.” Id.

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A. The Board’s water-related bases for denial are legally sufficient and
supported by the record.

Relators rely largely on the existence and conditions of the NPDES permit to argue
that the Board’s conclusions regarding well and aquifer contamination were unsupported
by the record. Relators note that the MPCA has the authority to issue NPDES permits to
place limits on the type and quantity of pollutants released into waterways. See The Clean
Water Act, 33 U.S.C. § 1342(b) (2016); Minn. Stat. § 115.03, subd. 5 (2016); Minn. R.
7001.1000-1100 (2015). Relators assert that the Board is not entitled to second guess the
conditions of its NPDES permit when it comes to the regulation of groundwater quality.
See In re Hutchinson , 440 N.W.2d 171, 176 (Minn. App. 1989) (“Agency decisions are
presumed to be correct by reviewing courts, and will be reversed only when they reflect an
error of law or when the findings are arbitrary and capricious or unsupported by substantive
evidence.”), review denied (Minn. Aug. 9, 1989) . Relators further assert that th e MPCA
will oversee the mine for as long as it determines is necessary, which may extend beyond
active mining, and would require relators to be responsible for the cost of any required
mitigation.
Relators assert that the County cannot impose requirements and conditions
regarding wells and water quality above and beyond what is required by the NPDES permit
because the MPCA, the Minnesota Department of Natural Resources, and the Minnesota
Department of Health are responsible for well and groundw ater issues, and further
requirements are unreasonable. Relators also argue that water aesthetics do not pose a risk
to the health, safety, or general welfare of the public. Relators conclude that because the

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Board based its decision on issues not addres sed by the NPDES permit, the denial was
arbitrary and capricious.
The Board agrees that relators’ NPDES permit addresses groundwater
contamination, but notes that the permit does not necessarily extend far enough into the
future to address the County’s concerns and does not address water aesthetics. The Board
argues that the standards set by the MPCA and NPDES permit do not, as a matter of law,
preclude the Board from denying a land -use permit where relators failed to satisfy the
Board’s concerns regarding health, safety, and welfare as they have here.3 See August v.
Chisago Cty. Bd. of Comm’rs, 868 N.W.2d 741, 747 (Minn. App. 2015) (concluding that
even if a use complies with the noise pollution limits deter mined by the MPCA, a
governing body may still conclude that the level of pollution would negatively impact
neighboring properties), review denied (Minn. Dec. 15, 2015). The Board notes that it
requested financial security to ensure that future groundwater issues could be mitigated
without the County becoming liable for those costs, and that relators not only declined to
provide financial security to the County, but also declined to discuss future mitigation of
groundwater contamination. The Board asserts that its denial was not arbitrary and
capricious because relators failed to provide assurances regarding long-term mitigation of
aquifer and well contamination , and failed to show that the IUP would not burden public
facilities (the wells), or negatively affect adequate water supplies.

3 The argument that “water aesthetics,” or secondary water standards, is a “health and safety
concern” is not supported on this record , but water aesthetics do im plicate the welfare of
County residents in terms of water palatability as well as possible staining of skin, te eth,
and clothing.

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Here, the Board considered extensive information from experts on behalf of relators,
from County staff evaluating the Project, and from County residents, and concluded that ,
despite some indication that the aquifer would be protected , there was too much
uncertainty. The Board also concluded that approval of the IUP would risk exposing the
County to financial liability because relators were not agreeable to posting financial
security. The Board made the necessary findings under S.C.Z.O. ch. 2-7-1, and its
justifications for denial are provided for under Minn. Stat. § 394.303, subd. 2(3). Because
the Board had a rational basis, supported by the record, to conclude that relators failed to
meet the requirements of S.C.Z.O. ch. 2-7-1, its denial of relators’ IUP application was not
arbitrary and capricious.
B. The Board’s traffic-related bases for denial are legally sufficient and
supported by the record.

Relators assert that the Board’s concerns regarding traffic were not supported by
independent analysis or by facts in the record and were not an appropriate basis for denial.
See, e.g. , Yang, 660 N.W.2d at 834 (finding that neighbors’ unsubstantiated concerns
regarding traffic were not sufficient to support denial of a conditional-use permit). Relators
argue that the Board’s conclusion that the Project “could” burden Valley View Drive and
Highway 169 is improperly speculative, and that the S.C.Z.O. requires a finding that the
use “will” burden pu blic facilities. S.C.Z.O., ch. 2 -7-1(1). Relators argue that the
conditions in the draft IUP adequately addressed traffic issues by requiring relators to enter
into a developer’s agreement with the Township and to resolve outstanding issues with
MNDOT. Relators also claim that because it was pursuing agreements to update the roads
in question, the Board’s conclusion that public roads would be burdened by the Project is

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not supported by the record. Relators inaccurately claim that it agreed to fund the necessary
road improvements, and conclude that the Board’s denial of its IUP application was
arbitrary and capricious.
The record shows that there were a number of haul routes proposed by relators and
that each of the proposed routes presented concerns. Both the County and the Township
requested that relators enter into a developer’s agreement regarding the Township roads
prior to approval of the IUP, but relators failed to do so. The record shows that relators
also failed to present a funding plan for road upgrades that would be necessary to create a
safe haul route for their trucks. The Scott County 2030 Comprehensive Plan provides that
“[t]he County shall consider any development or subdivision premature if . . . [t]he
development or subdivision lacks necessary adequate local paved roads (or plans for future
paved roads).” Chapter 6 -Transportation, Goal #VI -2(g) (2016). Failure to submit a
proposal that is consistent with the County’s Comprehensive Plan is a valid reason to deny
a land-use permit. See Hubbard Broad ., Inc., 323 N.W.2d at 763. The Board had the
responsibility to act to protect the health, safety, and welfare of County residents, and
relators failed to present a safe haul -route plan in compliance with S cott County’s
Comprehensive Plan. The Board had a rational basis , supported by the record, to deny
relators’ IUP application, and its denial was not arbitrary and capricious.
Affirmed.