Brian Winczewski, Relator,

This opinion will be unpublished and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
A16-2083

Brian Winczewski,
Relator,

vs.

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

Osage Sportsmen's Club, Inc.,
Respondent.

Filed September 5, 2017
Reversed and remanded
Stauber, Judge*

Becker County Board of Commissioners
James H. Perkett, Law Office of James Perkett, P.L.L.C., Park Rapids, Minnesota (for
relator)
Tammy L. Merkins, Becker County Attorney, Detroit Lakes, Minnesota; and
Scott T. Anderson, Rupp, Anderson, Squires & Waldspurger, Minneapolis, Minnesota (for
respondents Becker County Board of Commissioners, et al.)
Matthew J. Enger, Thomason, Swanson & Zahn, PLLC, Park Rapids, Minnesota (for
respondent Osage Sportsmen’s Club, Inc.)

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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Considered and decided by Reyes, Presiding Judge; Reilly , Judge; and Stauber,
Judge.
U N P U B L I S H E D O P I N I O N
STAUBER, Judge
Relator, who lives near respondent shooting range, argues that respondent county
board’s decision to grant a conditional use permit (CUP) to harvest trees for expansion of
the shooting range was unsupported by evidence in the record and arbitrary and capricious.
Because the county board did not make articulable findings that reflect full consideration
of zoning ordinance and statutory noise standards, we reverse and remand for further
proceedings.
FACTS
Relator Brian Winczewski challenges the decision of respondent Becker County
Board of Commissioners to grant a conditional use permit (CUP) to respondent Osage
Sportsmen’s Club, Inc. for tree clearing in conjunction with the expansion/reconfiguration
of the club’s shooting range in Osage Township. In October 2015, the club applied for an
initial CUP for timber harvesting in order to increase the number of trap shooting lanes
from one to four, add acco mpanying trap houses, rearrange the rifle range, add a parking
area, and eventually add a new club house and warming house. The club had already
cleared trees for this purpose in the summer of 2015 and then discovered that a CUP was
needed. In October 2015, the club also purchased an additional parcel of land to the north
of the original parcel, intending to use the new parcel as a buffer for the expanded activities.
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Club members indicated that the expansion related, in part, to the club’s use by the Park
Rapids High School trapshooting team . A number of neighbors, including Winczewski,
testified at the planning commission meeting against the expansion based on increased
noise, safety concerns with ricocheting bullets, extended hours, and a possible nuisance
and decrease in their property values. One planning commission member stated that it
appeared that the concerns related not to the high school trap shooting, but to extended
hours of operation for pistol and rifle shooting.
The planning commission voted to recommend approval of the CUP under the
Becker County Zoning Ordinance (BCZO) (2015), and the county board summarily
approved the CUP without making written findings on the basis for its approval. In the
summer 2016, the club also cleared additional trees from its newly acquired north parcel,
and a portion of the new trapshooting lanes were constructed on that parcel.
On certiorari appeal, this court reversed for insufficient findings, concluding that it
could not ascertain from the record whether the county could reasonably find that the
requirements for the CUP in the zoning ordinance were met. Winczewski v. Becker Cty .
Bd. of Comm’rs, No. A15-1911, 2016 WL 4067729, at *4 (Minn. App. Aug. 1, 2016). We
expressly declined to address whether the club’s expansion was permissible under the
nonconforming use section of the zoning ordinance, noting that, “[b]ecause Becker County
argues that a CUP is not required for the Club’s expansion, and we find nothing in the
ordinance plainly allowing the Club to obtain a CUP for its proposed uses, additional fact
finding on remand would be useless.” Id.
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After the reversal of its initial CUP determination, the county board obtained advice
from counsel that the shooting range was an existing nonconforming use, so that its use
before the 2015 tree clearing was protected, but that the tree harvesting itself required a
CUP. The county board presented the club with the options of reforesting the land or
applying for a new CUP specifically for tree harvesting. The club then applied for a new
CUP, requesting permission only for the tree harvesting. At a planning commission
meeting, commission members expressed that “the board has to look at the [CUP] as if the
club does not exist,” and that “they are only looking at the [CUP] to clear timber in the
Shore Impact Zone and not as a shooting range.” The planning commission moved to
recommend approval of the CUP, with proposed findings.
The county board took public comments on the proposed CUP, which included
numerous concerns from neighboring property owners about decreased safety and
increased noise levels since the trees had been removed. A club representative stated that
the club had replanted 400 trees and changed the direction of the shooting. The board
approved the CUP with specific findings. These included that: the club had an approved
storm water pollution prevention plan, a permit from the MPCA, and a letter of approval
from the DNR; the tree clearing did not encroach on neighboring properties and so would
not affect them; the tree clearing did not extend to the public water of the adjoining lake,
and no future structure would be visible from the lake. The county board also incorporated
in its findings a planning commission staff report, which indicated that adequate measures
had, or would be, taken, to prevent or control offensive fumes, o dor, dust, noise, or
vibration, and to control lighting to avoid disturbing neighboring properties. The report
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also stated, “The appropriate permits for clearing trees have already been obtained by the
Sportsmen’s club and those permits require the owners to control the dust and noise from
these activities. None of the other suggested nuisances are possible with the proposed
activities.” Finally, the county board found that adequate utilities, access roads, drainage,
parking, and other necessary facilities had been provided. The county therefore issued the
CUP for the tree harvesting.
Winczewski has filed this certiorari appeal.
D E C I S I O N
The county has discretion to approve or deny a conditional- use-permit application.
Zylka v. City of Crystal, 283 Minn. 192, 195-96, 167 N.W.2d 45, 48-49 (1969). An
appellate court independently reviews a county’s decision regarding a CUP to determine
whether the decision had a reasonable basis, “or whether the county acted unreasonably,
arbitrarily, or capriciously.” Schwardt v. County of Watonwan, 656 N.W.2d 383, 386
(Minn. 2003). To make this assessment, the court must first determine whether the reasons
given by the county for its decision were legally sufficient. RDNT, LLC, v. City of
Bloomington, 861 N.W.2d 71, 75- 76 (Minn. 2015). If they were sufficient, we then
determine whether the reasons were supported by a factual basis in the record. Id. at 76.
This court interprets existing statutes and ordinances de novo and “review[s] the record to
determine whether there was legal evidence to support the zoning authority’s decision.” Id.
at 76 (quotation omitted). Winczewski claims that the county board’s decision was legally
insufficient because it did not fully address the relevant zoning ordinance and statutory
criteria and did not provide a sufficient legal and factual basis for granting the CUP.
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At the outset, we note the county’s position that, because the club is an existing
nonconforming use, the club properly applied for a CUP only for tree harvesting. Although
the county may constitutionally prohibit the creation of nonconforming uses, existing
nonconforming uses “must either be permitted to remain or be eliminated by use of eminent
domain.” County of Freeborn v. Claussen, 295 Minn. 96, 99, 203 N.W.2d 323, 325 (1972).
It is undisputed that the club has been operating, at least on a small scale, since the 1950s,
and its establishment preceded the adoption of the zoning ordinance in 1971. Therefore,
the club is an existing nonconforming use. And although the county has authority to restrict
by ordinance the expansion of a nonconforming use, see Minn. Stat. § 394.36, subd. 2
(2016), the zoning ordinance does not contain such a restriction, other than shoreland
mitigation requirements, which were addressed in granting the CUP. See BCZO ch. 3§§1-
11(2015).
We also recognize that the requirements of the Minnesota Shooting Range
Protection Act apply to the club’s expansion of its facilities. See Minn. Stat. §§ 87A.01-
.10 (2016).
1 Under that act, an existing shooting range that is a nonconforming use, shall
be allowed to conduct additional shooting activities, providing that it complies with
shooting-range performance and noise standards specified in that act. Minn. Stat.
§ 87A.03, subd. 2. Therefore, because the club is a nonconforming use, it properly applied

1 This act was passed in 2005. See Minn. Laws ch. 105, §§ 1-8, at 589-93 (2005). Among
other provisions, it prohibits nuisance actions for damages or equitable relief against a
shooting range that is otherwise in compliance with shooting range performance standards
and limits permanent injunctions against shooting ranges to situations in which a court
finds the range or its activities constitute a “clear and immediate safety hazard.” See Minn.
Stat. §§ 87A.06, .07.
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only for a CUP relating to harvesting trees to facilitate the expansion of the gun range on
its property. See id.
Nonetheless, an applicant for a CUP has the burden to show that “the standards and
criteria stated in the [relevant] ordinance will be satisfied.” Minn. Stat. § 394.301, subd. 1,
(2016). This includes both general conditional-use requirements and “insofar as
practicable, requirements specific to each designated conditional use.” Id. Thus, in
granting the CUP, the county board was required to show that the club’s proposal satisfies
each condition for CUP approval in the zoning ordinance. See Schwardt, 656 N.W.2d at
389; see also Minn. Stat. § 87A.08, subd. 1 (providing that a local zoning authority may
enforce applicable ordinances that are consistent with that chapter). Under that ordinance,
when considering whether to grant a CUP, the county board must address: (1) the effect on
surrounding property; (2) the effect on orderly, consistent development; (3) whether
adequate facilities exist; (4) whether adequate parking exists; (5) whether a nuisance would
be created; and (6) additional criteria for shoreland areas, including the prevention of
pollution, limited visibility from public waters, and adequate utilities. BCZO ch. 8, § 11.
Here, the county board found that each of these requirements was met. Nonetheless,
in order for this court to fully consider the county board’s decision, the findings of the
county board must be adequate for judicial review. In re Block , 727 N.W.2d 166, 179
(Minn. App. 2007). And we do not defer to a governing body’s decision when it has not
taken a “hard look” at the problems involved. Id. at 180.
We conclude that although the county board made specific findings addressing the
CUP requirements, those findings are not legally sufficient to support its decision on the
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current record. First, the zoning ordinance relating to a CUP in shoreland areas requires
that adequate measures be taken to protect those areas, such as obtaining a permit from the
MPCA and a stormwater pollution prevention plan, adherence to DNR forestry best
management practices, and an erosion control and sedimentation plan approved by the
county soil and water conservation district. See BCZO ch. 6, §§ 7, 13; ch. 8, § 11(F)(6)(a).
But the county board did not indicate whether its findings on this point relate to the tree
harvesting that occurred in 2015, before the prior CUP was reversed, or the harvesting that
occurred in 2016, which is the subject of this CUP. Any consideration of this issue is
further complicated by the parties’ disagreement on the acreage covered by the 2016
harvesting, which is also unclear from the record. And although the club alleges that the
tree harvesting allowed reconfiguration of the shooting range, so that shooting no longer
would occur over the adjoining lake, the record does not clearly specify the layout of the
new shooting lanes, whether they would be extended, or whether they would merely be
rearranged. The county board made no findings on the reconfiguration or how it would
affect the board’s consideration of the standards in the ordinance.
Further, no evidence was presented to the county board on whether the club’s
expansion complied with statutory noise standards for shooting ranges. See Minn. Stat.
§ 87A.05 (providing specific noise standards for shooting ranges). The record contains no
indication that noise measurements were taken in conformity with these standards. See id.
A number of neighboring landowners who opposed the CUP alleged that noise levels from
the shooting range had increased following the tree har vesting; Winczewski asserted that
when high powered rifles were shot on the property, he recorded decibel readings of
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100dbs. We recognize that general neighborhood opposition is an insufficient basis for
permit denial. See Yang v. County of Carver , 660 N.W.2d 828, 833 (Minn. App. 2003).
But we have noted that the effects of noise from a shooting range may be relevant to a
county board’s decision to grant a CUP, even when the noise level would not exceed
MPCA limits. August v. Chisago Cty. Bd. of Comm’rs, 868 N.W.2d 741, 748 (Minn. App.
2015), review denied (Minn. Dec. 15, 2015). Here, more specific noise measurements
would assist the county board in determining whether, after the trees were harvested, the
statutory noise standards were exceeded. Alt hough the county board found that adequate
noise-control measures had been taken, it addressed only measures taken to control noise
from the act of tree clearing itself, not measures to control any increased noise that m ay
occur from shooting activities once the CUP was approved. This narrow focus is legally
insufficient to show that the county board took a “hard look” at the problem, as required
for granting a CUP. See Block, 727 N.W.2d at 180. For all of these reasons, we conclude
that a remand is appropriate so that the parties may more fully develop the record and
provide the county board with adequate evidence on which to base an informed decision
on granting the CUP. See id. at 182 (reversing and remanding for reconsideration of
application for CUP, allowing all parties an opportunity to present evidence).
Finally, we note Winczewski’s argument that, even though the county board
minutes reflect that the parties stipulated to reforestation of the cleared area, no provision
to that effect was included in the CUP as issued. We agree that any such stipulation should
be memorialized because a CUP controls the rights of any owner of the land. See
Northpointe Plaza v. City of Rochester, 465 N.W.2d 686, 689 (Minn. 1991) (stating that a
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CUP is a protected property right that runs with the affected land). And the county would
not have unilateral authority to modify the terms of the CUP at a later date. Upper
Minnetonka Yacht Club v. City of Shorewood , 770 N.W.2d 184, 190 (Minn. App. 2009).
Therefore, should the county board on remand determine to grant the CUP, it also should
appropriately memorialize any such agreement on the recorded CUP.
Reversed and remanded.