Minnesota Solar, LLC, 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This opinion will be unpublished and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
A17-0504

Minnesota Solar, LLC,
Relator,

vs.

Carver County Board of Commissioners,
Respondent.

Filed December 18, 2017
Affirmed
Smith, Tracy M., Judge

Carver County Board of Commissioners
File No. PZ20160028

Karla M. Vehrs, Gretchen L. Gurstelle , Lindquist & Vennum LLP, Minneapolis,
Minnesota (for relator)

Jay T. Squires, Michael J. Ervin, Rupp , Anderson, Squires & Waldspurger P.A.,
Minneapolis, Minnesota (for respondent)

Considered and decided by Kirk, Pr esiding Judge; Reilly, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
On certiorari appeal from respondent-boa rd’s denial of a conditional use permit
(CUP) for a large solar-energy system, relator argues that the decision was arbitrary,
capricious, and unreasonable. Rela tor contends that (1) the r easons cited for denial were

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not based on the ordinance or supported by th e evidence and (2) the decision to deny the
CUP violated its equal protection rights. Relator also asks us to rule on the propriety of ex
parte communications in quasi-judicial proceed ings, arguing that the issue is capable of
repetition yet evading review. We affirm.
FACTS
Relator Minnesota Solar LLC submitted an application to the Carver County Land
Management Department for a CUP to construct and operate a four-megawatt large solar-
energy system (solar garden) on 35 acres of land in Watertown Township, Carver County.
The application came before the Carv er County Planning Commission during a
public meeting, at which the planning commission heard testimony from representatives of
Minnesota Solar as well as from members of the public who would be affected by the
proposed project. Two members of the public opposed the project over concerns that,
among other things, stray voltage would affect their dairy farms. At the close of the
meeting, one of the planning commissioners expressed concern about the project based on
his experience with stray voltage and its negative effect on his family’s dairy farm. Based
on the possibility of stray voltage, he moved to deny the request. The planning commission
voted unanimously to recommend denying Minnesota Solar’s application request.
Minnesota Solar’s application then came before respondent Carver County Board
of Commissioners (the board) at two public meetings. The board heard testimony and
received materials from Minnesota Solar. The board also heard testimony from members
of the public, who again expressed various concerns about the project, including the effects

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of stray voltage on the neighb oring dairy farms. At the e nd of the second meeting, the
board voted three-to-two to deny Minnesota Solar’s CUP.
The board subsequently issued its findings and order supp orting the decision. In
the findings and order, the board explained that an order for the issuance of a CUP can be
adopted only if the ten standard s set forth in Carver County, Minn., Code of Ordinances
§ 152.251 (2016) are satisfied. The board then determined th at four of those standards
were not satisfied.
Minnesota Solar filed a petition for a writ of certiorari and m oved this court to
compel the board “to file a complete record on appeal including any and all
communications between individuals and Co mmissioners regarding Minnesota Solar’s
[CUP] application.” Minnesota Solar clai med that one or more board commissioners
received and considered communications from individual members of the public about the
CUP application, and that any such communica tions should be included in the record on
appeal. We determined that Minnesota Solar’s request was premature because Minnesota
Solar had not identified specific documents that were omitted from the record. Minnesota
Solar also claimed that, outside of pub lic hearings, any communications with
commissioners about the CUP application we re improper ex parte communications. But
we determined that, although Minnesota Solar’s assertion may apply to the merits of the
appeal, it does not inform our analysis of the proper scope of the record. We, therefore,
denied Minnesota Solar’s motion.

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D E C I S I O N
I. The board’s denial of the CUP was no t arbitrary, capricious, or unreasonable.
Minnesota Solar challenges the board’s de cision, arguing that it was arbitrary,
capricious, and unreasonable because (A) “each of the reasons cited for the decision was
either legally insufficient, factually unsupported, or both”; and (B) the decision violated its
equal protection rights.
A. Reasons for the decision
Counties are authorized to carry out planning and zoning activities for the purpose
of promoting the health, safety, morals, and general welfare of the community. Minn. Stat.
§ 394.21, subd. 1 (2016). As a zoning tool , a CUP may be approved “upon a showing by
an applicant that standards and criteria stated in the ordinance will be satisfied.” Minn.
Stat. § 394.301, subd. 1 (2016). A county’s decision to grant or deny a CUP is a quasi-
judicial act. Interstate Power Co. v. N obles Cty. Bd. of Comm’rs , 617 N.W.2d 566, 574
(Minn. 2000). We “will reverse a governing body’s decision regarding a [CUP] application
if the governing body acted unreasonably, arbitrarily, or capriciously.” RDNT, LLC v. City
of Bloomington, 861 N.W.2d 71, 75 (Minn. 2015). A decision is arbitrary and capricious
if it represents the decision-maker’s will rather than its judgement, or if it is “based on
whim or is devoid of articulated reasons.” Perschbacher v. Freeborn Cty. Bd. of Comm’rs,
883 N.W.2d 637, 643 (Minn. App. 2016) (quotation omitted).
There are two steps in determining wh ether the county acted unreasonably,
arbitrarily, or capriciously. RDNT, 861 N.W.2d at 75. We first determine whether the
reasons given by the county were legally sufficient. Id. at 75-76. Second, if the reasons

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were legally sufficient, we must determine whether “the reasons had a factual basis in the
record.” Id. at 76.
Minnesota Solar challenges the board’s decision on several grounds. But it is well
settled that “[n]ot all of the reasons” for the denial of a CUP “need be legally sufficient and
supported by facts in the record.” Hubbard Broad., Inc. v. City of Afton, 323 N.W.2d 757,
765 n.4 (Minn. 1982). Rather, a denial of a CUP is not arbitr ary when at least one of the
reasons given for the denial has a rational basis. Trisko v. City of Waite Park, 566 N.W.2d
349, 352 (Minn. App. 1997), review denied (Minn. Sept. 25, 1997).
Legally sufficient reasons
In denying Minnesota Solar’s CUP appli cation, the board determined that the
standards set out in subparts (B), (D), and (I) of section 152.251 of the Carver County Code
of Ordinances were not satisfied due to the potential for stray voltage. Subpart (B) requires
that the CUP “will not be inju rious to the use and enjoymen t of other property in the
immediate vicinity for the purposes already permitted”; subpart (D) requires that the effect
of the CUP “will not be detrimental to the hea lth, safety and welfare of Carver County or
to the occupants of the immediate neighborhood”; and subpart (I) requires that the CUP be
“compatible with the land uses in the neighborhood.” The supreme court has “long held
that a city may deny a [CUP] application if the proposed us e endangers the public health
or safety or the general welfare of the area affected or the community as a whole.” RDNT,
861 N.W.2d at 76 (quotation omitted). The standards established in the identified subparts
of the ordinance reasonably relate to the health, safety, and welfare of the community and
are legally sufficient reasons to deny a CUP.

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Reasonable factual basis
Minnesota Solar also challenges the factual basis for the board’s determination that
these standards were not met. With respect to stray voltage specifically, Minnesota Solar
argues there is “no factual support for a de nial based on alleged concerns about stray
voltage and corresponding ‘incompatibility’ with agricultural land use in the area.”
Stray voltage is “a phenomenon in which an electrical current—voltage that returns
to the ground after powering an appliance—pa sses through an object not i ntended as a
conductor.” Siewert v. N. States Power Co. , 793 N.W.2d 272, 276 (Minn. 2011). This
court has recognized that stray voltage can be “problematic to the animals,” including dairy
cows. See ZumBerge v. N. States Power Co. , 481 N.W.2d 103, 107 (Minn. App. 1992)
(quotation omitted), review denied (Minn. Apr. 29, 1992).
The board found that concerns about the pr oposed solar garden “include the increase
in stray voltage potential for properties and dairy operations, because the proposed project
would be located near the end of the Xcel Energy transmission line.” The board also found
that “[t]estimony received . . . indicates ne ighboring property owners’ concerns with the
delay in notification of stray voltage and that this delay in notification would be detrimental
to the welfare of their dairy farm busine ss.” Moreover, the board found that “the
interconnection infrastructure would be located adjacent to the dairy operation and would
be controlled by Xcel Energy, which would not be subject to [Carver] County’s land use
regulations or stray voltage monitoring conditi on(s).” Thus, the board determined that,
“[b]ased on public testimony,” Minnesota Solar’s requested CUP “may be injurious to the
use and enjoyment of other property in th e immediate vicinity for purposes already

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permitted including animal agriculture, residential homes, and farms.” The board further
determined that, because Minnesota Solar “has not submitted an adequate or clear plan for
mitigating the potential for stra y voltage or for compensating neighbors in the event that
stray voltage became a problem,” Minnesota Solar “would not be able to guarantee that the
[solar farm] would not be detrimental to the neighboring farm(s).”
We review the record to determine whether it is sufficient to reasonably support the
board’s findings. Two neighboring dairy farmers tes tified at either the planning
commission or board hearings about their stra y-voltage concerns and the negative effect
that it can have on dairy cows. Similarly, at the planning commission meeting, one of the
commissioners, who is a former dairy farme r, recalled his experience with stray voltage,
stating that stray voltage affects the cows because “[y]ou can’t get [them] bred,” they can
be “jittery,” and “[m]ilk prod uction takes a pretty good squa t downward.” The negative
effect of stray voltage was acknowledged by Minnesota Solar’s expert, an electrical
engineering manager at Westwood. Although Minnesota Solar’s expert asserted that a
solar garden “is no more likely to cause stra y voltage than any other type of building
connected to that same distribution system,” he acknowledged that “for dairy farmers
especially, stray voltage is definitely a conc ern” because it “can impact their dairy milk
production.” And the expert from Westwood acknowledged that, with these solar gardens,
“[t]here is always going to be [a] minimal amount of stray voltage.” Minnesota Solar’s
expert’s testimony is consistent with an emai l from Xcel Energy, which states that “[a]
solar garden is not inherently any more, or less, likely to develop [stray voltage] issues than
any other customer.” (Emphasis added.) Th e potential for stray voltage associated with

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solar gardens, along with the evidence depic ting the devastating effe ct stray voltage can
have on dairy farms, two of which are loca ted adjacent to the proposed solar garden,
supported the board’s decision declining to find that the effects of the proposed use would
not be detrimental to the health, safety, and we lfare of Carver County or to the occupants
of the immediate neighborhood.
Minnesota Solar argues, however, that the board’s decision was arbitrary because it
rejected the expert testimony that Minnesota Solar submitted and was not based on concrete
information. Minnesota Solar relies on Trisko, in which this court reversed the denial of a
CUP when the board based its decision on neig hbors’ fears of an increase in respiratory
problems due to quarry dust, based on unscientific speculation, and not medical fact. 566
N.W.2d at 356-57. In that case, unrebutted expert testimony established that the exposure
level for dust surrounding quarries is “one-quart er of the level that is considered safe,”
which would create “essentially no risk.” Id. at 356. But here, although Minnesota Solar
insisted that its design, construction, and ma intenance would prevent it, the potential for
stray voltage was acknowledged and the harmful effect of stray voltage on dairy farms was
not disputed.
This case is more like two other cases in which this court affirmed denial of a CUP.
In SuperAmerica Grp., Inc. v. City of Little Canada, this court determined that, in denying
a request for a CUP to construct a service station, a city council had not improperly rejected
expert testimony that the station would cause litt le traffic congestion in favor of concerns
by residents and business owners that the station would aggravate existing traffic
congestion. 539 N.W.2d 264, 266-68 (Minn. App. 1995) (stating that CUP may be denied

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“if the proposed use would adversely affect the general welfare,” that neighborhood
opposition may be considered “if based on c oncrete information,” and that “residents
expressed more than a vague concern about future neighborhood problems”), review
denied (Minn. Jan. 5, 1996). Similarly, in Perschbacher, this court concluded that the
county board’s decision to deny a livestock producer’s CUP for a large swine barn was not
arbitrary and capricious where neighbors spoke of their “actual” experiences living near
existing livestock operations and their inability to enjoy the outdoors at certain times of the
day or when the wind is blowing in a certain direction. 883 N.W.2d at 644-45. Here,
members of the pubic who testified had expe rience with stray volt age and knowledge of
its impact on dairy farms.
Minnesota Solar argues that, despite any c oncerns about stray voltage, it “offered to
adhere to a host of conditions in order to put stray-voltage-re lated concerns to rest.”
Indeed, the supreme court recently recognized that, “[i]f a conditional use permit applicant
demonstrates to the governing body that imposing a reasonable condition would eliminate
any conflict with the ordinance’s standards and criteria, it follows that the governing body’s
subsequent denial would be arbitrary.” RDNT, 861 N.W.2d at 78. But, despite Minnesota
Solar’s argument to the contrary, the record demonstrates that the board did adequately
consider the conditions suggested by Minnesota Solar. The board considered Minnesota
Solar’s plan for a third-party system monito ring stray voltage and determined that the
monitoring system was insuffici ent to quell the stray-voltage concerns. The board also
considered the condition that $35,000 be placed in escrow in case stray voltage occurred,
but determined that the amount was insuffici ent and that farmers would have problems

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accessing that money if problems arose. Additionally, the boa rd considered whether the
$35,000 escrow account would be replenished if it were depleted. And the board
determined that the conditions applicable to Minnesota Solar would not be applicable to
Xcel Energy, which controlled the interconnec tion infrastructure. Therefore, the record
demonstrates that the board had a reasonable basis to dete rmine that Minnesota Solar’s
proposed conditions would not alleviate the stray-voltage concerns.
While our standard of review of a denial of a CUP is less deferential than that of a
grant, Schwardt v. County of Watonwan, 656 N.W.2d 383, 389 n.4 (Minn. 2003), appellate
review is nevertheless “limited and deferential.” Perschbacher, 883 N.W.2d at 644. We
acknowledge that this is a very close case . Minnesota Solar candidly acknowledged the
potential for stray voltage as a result of its operations, but tried to assure the board that the
design, maintenance, and operation of its solar farm would prevent the occurrence of stray
voltage and suggested a number of conditions to mitigate problems should stray voltage
occur. But in the end, the boa rd determined that the risk of stray voltage from the solar
garden, when situated so clos e to dairy operations as here , did not satisfy the standards
required for a CUP. Its findings were sufficiently supported by the record . Because a
denial of a CUP is not arbitrary when at leas t one of the reasons given for the denial is
valid, we need not address Minnesota Solar’s additional legal and factual challenges to the
board’s decision. See Trisko, 566 N.W.2d at 352 (stating th at a denial of a CUP is not
arbitrary when at least one of the reasons given for the denial is valid).

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B. Equal-protection guarantees
Next, we consider whether the board’ s decision was arbitrary and capricious
because it violated Minnesota Solar’s right to equal protection. The United States and the
Minnesota Constitutions guarantee citizens equal protection of the laws. U.S. Const.
amend. XIV, § 1; Minn. Const. art. I, § 2. “Disparate trea tment of two similarly-situated
property owners may be an indication that the local government is acting unreasonably or
arbitrarily.” Billy Graham Evangelistic Ass’ n v. City of Minneapolis , 667 N.W.2d 117,
126 (Minn. 2003). We review an equal-protection claim de novo. Thul v. State , 657
N.W.2d 611, 616 (Minn. App. 2003), review denied (Minn. May 28, 2003).
An equal-protection challenge requires an initial showing that “similarly situated
persons have been treated differently.” State v. Cox, 798 N.W.2d 517, 521 (Minn. 2011)
(quotation omitted). In determ ining whether two groups are si milarly situated, we focus
on “whether they are alike in all relevant respects.” Id. at 522. Appellate courts routinely
reject equal-protection claims of parties who fail to establish that they are similarly situated
to those from whom they conten d to be treated differently. See Schatz v. Interfaith Care
Ctr., 811 N.W.2d 643, 656 (Minn. 2012). The bu rden is on Minnesota Solar to establish
an equal-protection violation. See Thul, 657 N.W.2d at 616.
Relying heavily on the board’s approval of a CUP application for a different solar
garden (GreenMark CUP), Minn esota Solar argues that that the board violated its equal-
protection rights by treating Minnesota Solar differently than othe r applicants. We
acknowledge that we can take judicial notic e of the GreenMark CUP public records that
Minnesota Solar filed in this court. See Eagan Econ. Dev. Auth. v. U-Haul Co. of Minn. ,

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787 N.W.2d 523, 530 (Minn. 2010) (stating that appellate court may take judicial notice of
public records even if they we re not presented in district court because appellate courts
“have the inherent power to look beyond th e record where the orderly administration of
justice commends it”) (quotation omitted).
Public records indicate that the board granted the GreenMark CUP application for
a solar garden despite the stray-voltage concerns of a dairy farmer whose farm was located
“across from the site.” But the relative distance between the dairy farm and the proposed
GreenMark CUP site is unclear when compared to the distance between the farms and the
proposed site in this case. Moreover, the nu mber of dairy farmers expressing concerns
about stray voltage appears to be higher in this case than in the GreenMark CUP. And the
record is unclear whether the conditions im posed in the GreenMark CUP for alleviating
concerns about stray voltage are similar to the conditions proposed in this case, as
Minnesota Solar did not provide us the final decision by the board in the GreenMark case.
In addition, Minnesota Solar’s claim that it is similarly situated to successful CUP
applicants in another solar-garden appeal currently pending befo re this court is
unpersuasive because not only was stray voltage not one of the primary concerns raised in
that case, but the farmer that did raise the stray-voltage concern owned an equestrian farm.
Minnesota Solar has not established that the effects of stray voltage on an equestrian farm
are similar to the effects asso ciated with a dairy farm. Minnesota Solar thus fails to
establish that it is alike in all relevant respects to the other cases. It is therefore unable to
establish that its equal protection rights were violated.

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II. We do not give an advisory op inion on the question of “ex parte
communications.”

Finally, Minnesota Solar urges us to rule on the propriety of “ex parte
communications” in quasi-judic ial proceedings, arguing that the issue is capable of
repetition yet evading review. “The mootness doctrine demands appellate courts hear only
live controversies, and they may not issue advisory opinions.” Farm Bureau Mut. Ins. Co.
v. Schwan, 687 N.W.2d 388, 391 (Mi nn. App. 2004). Generally , we will dismiss a case
that is moot. Limmer v. Swanson, 806 N.W.2d 838, 839 (Minn. 2011). A reviewing court
will not, however, dismiss an issue as moot if it is capable of repetition and likely to evade
review. Kahn v. Griffin, 701 N.W.2d 815, 821 (Minn. 2005).
Minnesota Solar contends that this cour t’s special term order deferred a question
regarding the scope of the board’s obligation in compiling and submitting the record, which
“effectively rendered the issue moot” because, “to the extent any improper ex parte
communications about its application did occur, a decision abou t . . . their relationship to
the record on appeal after briefing and argument are complete means that neither the parties
nor the Court will have the ability to consider and address their implications for the case.”
But Minnesota Solar misconstrues our special term order because the order did not “defer”
the issue. With respect to Minnesota Solar’s contention th at board members engaged in
improper ex parte communications regarding th e CUP application, we determined that
Minnesota Solar’s “assertion may apply to the merits of the appeal, but [it] does not inform
our analysis of the proper scope of the record.” Our order stated that Minnesota Solar “is
not precluded from bringing a motion to supplement the record in the event that it identifies

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specific documents that were submitted to or considered by the board and have been
omitted from [the board’s] itemized list of the contents of the record.”
After the special term order was filed, Minnesota Solar did not bring a motion to
supplement the record or otherwise identify documents not contained in the record on
appeal that were submitted to or considered by the board. As a result, the issue is moot.
And we are not persuaded that the question is capable of repetition yet likely to evade
review. If Minnesota Solar had identified specific documents that were considered by the
board but are not contained in the record, it c ould have moved to supplement the record.
Based on a supplemented record, Minnesot a Solar could have argued that such
communication was improper and rendered the board’s decision unreasonable, arbitrary,
or capricious. Such a motion could also be brought in another case if documents supporting
a claim of improper communication were identified or produced. Therefore, we need not
issue an advisory opinion on the propriety of “ex parte communications” in quasi-judicial
proceedings.
Affirmed.