Kristi Rosenquist, 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This opinion will be unpublished and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
A17-0279

Kristi Rosenquist, et al.,
Relators,

vs.

Circle K. Family Farms,
Respondent,
Goodhue County Board of Commissioners, et al.,
Respondents.

Filed December 18, 2017
Affirmed
Reyes, Judge

Goodhue County Board of Commissioners

Jeff W. Brown, Jeff W. Brown Law, P.L.L.C., Duluth, Minnesota (for relators)

Dean M. Zimmerli, Dustan J. Cross, Gislason & Hunter, L.L.P., New Ulm, Minnesota (for
respondent Circle K)

Jason J. Kuboushek, Andrew A. Wolf, Iverson Reuvers Condon, Bloomington, Minnesota
(for respondents Goodhue County Board of Commissioners, et al.)

Considered and decided by Jesson, Presiding Judge; Reilly, Judge; and Reyes,
Judge.

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U N P U B L I S H E D O P I N I O N

REYES, Judge
Relators appeal respondent Goodhue County Board of Commissioners’ decision to
grant a conditional-use permit to respondent Ci rcle K Family Farms for construction of a
hog-confinement facility. We affirm.
FACTS
Relators appeal the Goodhue County Board of Commissioners’ (the county board)
decision to grant a conditional-use permit (CUP) to Circle K Family Farms (Circle K) as
an unreasonable, arbitrary, and capricious exercise of its power based on the administrative
record. All pertinent facts are undisputed.
In November 2015, Circle K submitted a CUP application to respondent Goodhue
County (the county). Circle K seeks to construct a hog-confinement facility on a parcel of
land in Zumbrota Township, Goodhue County (the project). The facility will house up to
4,700 finishing hogs, or 1,410 animal units.
Minn. R. 4410.4300, subp. 29(A), require s farms in possession of various animals
constituting more than 1,000 animal units to prepare an Environmental Assessment
Worksheet for review by the Minnesota Pollu tion Control Agency (MPCA) to determine
whether the animal-farming operation must conduct an Environmental Impact Study. The
county informed Circle K that it must first submit an Environmental Assessment
Worksheet to the MPCA prior to CUP review.
On January 20, 2017, followi ng a lengthy inquiry, the MPCA concluded that the
project did not pose a risk of potential significant environmental effects. As a result, Circle
3
K was not required to conduct an Environmental Impact Study. Relators did not challenge
the MPCA’s findings of fact and conclusions of law as provided in Minn. Stat. § 116D.04,
subd. 10 (2017 Supp.).
On February 13, 2017, th e Goodhue County Planning and Advisory Commission
(the planning commission) held a public hearing to review Circle K’s CUP application.
The planning commission heard testimony from re lators, Circle K ownership, and other
citizens both in favor and against Circle K’s proposed CUP. It then passed a motion to
adopt into the reco rd the planning commission staff report, findings of fact, application,
testimony, exhibits, and other evidence presented. It recommended that the county board
approve Circle K’s CUP application. On Fe bruary 21, 2017, the county board approved
Circle K’s CUP.
Relators sought certiorari review.
D E C I S I O N
I. The county board’s grant of a CUP to Circle K was not unreasonable,
arbitrary, and capricious, or contrary to law based on the administrative
record.

Relators argue that the county board’s grant of a CUP to Circle K was unreasonable,
arbitrary and capricious, or contrary to la w because the administrative record contained
substantial evidence that the project violat ed the minimum mandatory requirements set
forth in the county zoning ordinance. We disagree.
A county board may approve a CUP if the applicant shows that all the standards and
criteria in the county ordinance will be satisfied. Minn. Stat. § 394.301, subd. 1 (2016). A
county board’s decision regarding a CUP is a quasi-judicial decision we review by writ of
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certiorari. Interstate Power Co. v. Nobles Cty. Bd. of Comm’rs, 617 N.W.2d 566, 574 n.5
(Minn. 2000); Picha v. Cty. of McLeod, 634 N.W.2d 739, 741 (Minn. App. 2001). To show
that the county board acted unreasonably, relators have the burden of establishing that the
proposal did not meet one of the standards set forth in the county zoning ordinance and that
the grant of the CUP was an abuse of discretion. See Schwardt v. Cty. of Watonwan, 656
N.W.2d 383, 387 (Minn. 2003).
We independently review the county board’s grant of Circle K’s CUP to determine
if it is unreasonable, arbitrary and capricious, or contrary to law. Id. at 386. A decision is
arbitrary and capricious if it represents th e decisionmaker’s will and not its judgment.
Perschbacher v. Freeborn Cty. Bd. of Comm’rs, 883 N.W.2d 637, 643 (Minn. App. 2016)
(internal quotation omitted). “The standard of review is a deferential one, as counties have
wide latitude in making decisi ons about special use permits .” In re Block , 727 N.W.2d
166, 177 (Minn. App. 2007). We give more deference to a county’s approval of a CUP
than a county’s denial of a CUP. Watonwan, 656 N.W.2d 383, 389 n.4 (Minn. 2003).
First, we address whether the reasons gi ven by the governmental body in granting
the CUP were legally sufficient (legal-sufficiency prong). RDNT, LLC v. City of
Bloomington, 861 N.W.2d 71, 75 (Minn. 2015) (internal citation omitted). Second, if the
reasons given are legally sufficient, we dete rmine whether the reasons had a factual basis
in the record (factual-basis prong). We review the county’s interpretation of the zoning
ordinance de novo, and we apply the same rules that govern statutory interpretation. Eagle
Lake of Becker Cty. Lake Ass’n v. Becker Cty. Bd. of Comm’rs , 738 N.W.2d 788, 792
(Minn. App. 2007).
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A. Legal-sufficiency prong
The county zoning or dinance states in relevant par t: “These feedlot controls will
regulate the uses and development of land in Goodhue County which may adversely affect
the health, safety, and general welfare of the public.” Goodhu e County, Minn., Zoning
Ordinance, art. 13, § 1 (2007). In RDNT, the applicable CUP zoning ordinance similarly
protected the health, safety, and welfare of residents and was adequate to satisfy the legal-
sufficiency prong of the test. 861 N.W.2d at 76. Thus, the county zoning ordinance here,
like the ordinance in RDNT, is legally sufficient because its purpose is to protect the health,
safety, and welfare of the public.
B. Factual-basis prong
Relators argue that the county acted unreasonably when it granted Circle K’s CUP
because the feedlot will: (1) violate the county odor-offs et ordinance; (2) pose
environmental concerns; and (3) substantially diminish property values and create a
nuisance. We analyze each argument in turn.
1. County odor-offset ordinance
Relators argue that the county acted unreasonably in its approval of Circle K’s CUP
because it violates the county odor-offset ordinance. We are not persuaded.
The county zoning ordinance sets forth various restrictions on feedlot locations and
includes provisions for setbacks from land uses, including dwellings:
New feedlots shall not be located within 1,000 feet or 94% odor
annoyance free rating [distan ce], as determined by the
OFFSET odor evalua tion model, from any existing dwelling
(other than those designated as an accessory to a feedlot or a
feedlot operator’s dwelling), ch urches, public parks, schools
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(as defined in Minnesota Statutes 120A.05), or private schools
excluding home school sites, whichever is greater.

Goodhue County, Minn., Zoning Ordinance, art. 13, § 7, subd. 6 (2007).
Pursuant to the county zoning ordinance, odor-offset calculations are made using an
odor-offset worksheet developed by the Univ ersity of Minnesota . Goodhue County,
Minn., Zoning Ordinance, art. 13, § 1 (2007 ). The odor-offset worksheet contains the
heading “optional inputs – additional buildi ng or area[,]” but the drop-down under this
heading does not contain an input for an unenclosed rendering pit. Its instructions state:
There may be some types of facilities that are not listed in the
drop down menus. Typically, these types of sources are not
listed because there has been no emission data collected at
these types of sources. For these cases, a best professional
judgment can be used to estimate the flux rates. These can be
based on similar facilities or current literature.

The crux of the issue is the interpretation of the word “feedlot” in the county zoning
ordinance, which requires that Circle K’s feedlot to adhere to the 94% odor annoyance-
free rating. Relators argue that the rendering pit must be included in the calculation because
it is part of the “feedlot.”
The county zoning ordinance defines the word “feedlot” as:
Lot or building or combination of lots and buildings intended
for the confined feeding, bree ding, raising or holding of
animals and specifically designed as a confinement area in
which manure may accumulate, or where the concentration of
animals is such that a vegetativ e cover cannot be maintained
within the enclosure.

Goodhue County, Minn., Zoning Ordinance, art. 10, § 2, subd. 44 (2007) (emphasis added).
“Confine” is defined as “to shut or keep in, especially to imprison.” American Heritage
7
Dictionary of the English Language 382 (4th ed. 2000). The rendering pit is a concrete
structure with no roof, and accordingly, it cannot be a “feedlot” because it is unenclosed.
The county did not act unreasonably in ma king its odor-offset calculations. Its
county feedlot officer conducte d an independent odor-offset review using the University
of Minnesota’s odor-offset worksheet and found that the proposed project—the hog-
confinement facility itself—w ill have a 94% odor annoyance-free rating at 1,655 feet.
During the planning-commission hearing, the county feedlot officer testified that the
county does not speculate as to the odor emissions from the rendering pit because the odor-
offset worksheet does not contain an input for it, and the director of land-use management
confirmed that the county has never included a rendering pit in its calculations in the past.
Therefore, the feedlot offi cer acted in compliance with the odor-offset worksheet
instructions by using her best professional judgment in calculating odor emissions for the
feedlot based on similar facilities.
At the public hearing, relator Kristi Rosenquist presented evidence of her
independent odor-offset calculations, which calcu lated a 93% odor offset using the same
odor-offset worksheet that the county used. 1 After hearing these concerns, the planning

1 It appears that Rosenquist’s calculations factored in the hog-co nfinement facility, the
rendering pit, and 12 additional hog-confinement facilities measuring 5’ x 8” each. There
is nothing in the record indicating that Resp ondent Circle K proposed to construct an
additional 12 hog confinement fac ilities. In addition, relators do not argue that the odor-
offset calculations should take these additi onal hog-confinement fa cilities into account;
rather, relators argue that the odor-offset ca lculations should be based on the location of
the rendering pit in relation to the nearest dwelling. Thus, relators have not met their
burden to establish that the proposal did not meet one of the standards set out in the county
zoning ordinance. See Watonwan, 656 N.W.2d at 387.
8
commission determined that the project met the 94% odor-annoyance-free rating based on
the hog-confinement facility’s distance to the nearest reside nce, which was 1,708 feet
away. The county board subsequent ly received the planning commission’s
recommendations, considered them, and approved Circle K’s CUP.
Because the parties offered conflicting evidence and testimony, “our function is ‘not
to weigh the evidence but to review the record’” to determine whether there was evidence
to support the zoning authority’s decision. RDNT, 861 N.W.2d at 76 (internal quotation
omitted).
2. Environmental concerns
Relators argue that the county board ac ted unreasonably because the project will
pose environmental concerns relating to hyd rogen-sulfide air pollution and groundwater
pollution. The MPCA conducted an extensive analysis of these issues when relators voiced
their concerns during its public-comment period. In its findings of fact and conclusions of
law, the MPCA found that th ese concerns would not pose an environmental risk. The
MPCA’s findings of fact and conclusions of law, which relators did not challenge pursuant
to Minn. Stat. § 116D.04, subd. 10, were ad opted by the county board when it made its
decision to grant Circle K’s CUP.
3. Substantial diminishment in pr operty values and creation of a
nuisance

Relators argue that the project will substantially decrease property values. Relators’
argument lacks merit.

9
During the county board meeting, relato rs quoted the Good hue County, Minn.,
Zoning Ordinance, art. 13, § 5, subd. 4(E), which prohibits approval of a CUP when the
use would substantially diminish nearby property va lues. Relators alleged that property
values will decrease, and introduced studies that show property values generally decrease
when hog facilities are constructed nearby. Th ese are mere assertions of vague concern
lacking substantiated, concrete evidence. We have held that “A city may consider
neighborhood opposition only if based on concrete information.” Yang v. County of
Carver, 660 N.W.2d 828, 832 (Minn. App. 2003). Relators present no additional evidence
to this court and have not met their burden. See Watonwan, 656 N.W.2d at 387.
Thereafter, the county boar d adopted the planning commission’s finding that the
project conforms to the county zoning ordinance. We review the county board’s decision
approving Circle K’s CUP with particularly great deference and will affirm the decision so
long as its basis has even the slightest validity. See Roselawn Cemetery v. City of Roseville,
689 N.W.2d. 254, 259 (Minn. 2004); Watonwan, 656 N.W.2d at 387.
The county board’s approval of Circle K’s CUP was neither unreasonable nor an
abuse of discretion. The county board permissibly relied on the MPCA’s findings of fact
and conclusions of law, which relators failed to challenge under to Minn. Stat. § 116D.04,
subd. 10. Additionally , the county board relied on resp ondents’ evidence and testimony
regarding odor-offset calculations, diminishme nt in property values , and creation of a
nuisance. See RDNT, 861 N.W.2d at 76 (“cour ts should ordinarily defer to a [county’s]
judgment on conflicting evidence”). The county board satisfies prong two.

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II. The county did not abuse its discretion when it granted Circle K’s CUP based
on its allegedly incomplete application.

Relators argue that the county’s grant of a CUP to Circle K was an abuse of
discretion because Circle K submitted an incomplete application. We disagree.
“For the permit to be struck down, the county board’s grant of the permit with the
incomplete application must also ha ve been an abuse of discretion.” Loncorich v. Buss ,
868 N.W.2d 755, 760 (Minn. App. 2015). Goodhue County, Minn., Zoning Ordinance,
art. 13, § 6, subd. 6 requires:
Land spreading agreements shall be provided if the applicant
does not own the minimum acreage as required in the nutrient
management plan and that minimum must be under agreement
throughout the lifetime of the permitted feedlot. Any shortage
of minimum required acreage is cause for revocation of the
permit and constitutes a violation of this Ordinance.

Circle K does not own the 577 acres of real property required to annually spread manure
produced by the hog-confinement facility.
Relators argue Circle K’s application was incomplete because it did not submit land
spreading agreements for “the lifetime of the feedlot.” Nothing in the ordinance requires
lifetime land-spreading agreements be submitte d prior to CUP approval, and Circle K’s
land-spreading agreements state “[t]his Agreement is Good Until further notice.” Circle
K’s application does not violate Goodhue County, Minn., Zoning Ordinance, art. 13, § 6,
subd. 6.
The county board did not abuse its discretion in granting Circle K’s CUP. “[W]here
a conditional use applicant informs the board of commissioners of his intention to comply
with all applicable standards, the board need not resolve sp ecific compliance issues prior
11
to granting a conditional use permit.” Yang, 660 N.W.2d at 835. In Loncorich v. Buss,
this court held that an altogether-absent manure-management plan was sufficient to permit
the county board to grant a CUP. 868 N.W.2d at 761. Therefore, Circle K did not submit
an incomplete application, and the county did not abuse its discretion in approving its CUP.
Affirmed.