In re An Order Finding Certain Facts and Ordering the Denial of a Conditional Use Permit United States Solar Corporation, et al., Relators,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0111

In re An Order Finding Certain Facts and
Ordering the Denial of a Conditional Use Permit
United States Solar Corporation, et al.,
Relators,

vs.

Carver County Board of Commissioners,
Respondent.

Filed December 24, 2018
Reversed and remanded
Reyes, Judge

Carver County Board of Commissioners
File No. PZ20170032

Timothy M. Kelley, Andrew J. Gibbons, Thomas C. Burman, Stinson L e o n a r d S t r e e t ,
L.L.P., Minneapolis, Minnesota (for relators)

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

Considered and decided by Florey, Presiding Judge; Ross, Judge ; and Reyes, Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
Relators United States Solar Corporation and USS Westeros Sola r LLC challenge
the denial by respondent Carver County Board of Commissioners ( the county) of their
conditional-use-permit (CUP) app lication, arguing that the deci sion was arbitrary,

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capricious, and unreasonable. Relators assert that (1) the reasons cited for denial were not
supported by evidence in the record and (2) the decision to den y the CUP violated their
equal-protection rights. Because the county’s decision lacked factual support in the record,
it was unreasonable, arbitrary, and capricious. We reverse and remand.
FACTS
In July 2017, relators submitted an application for a CUP to construct and operate a
one-megawatt large solar energy system (solar garden) on eight to nine acres of land in San
Francisco Township, Carver Count y. The application came before t h e C a r v e r C o u n t y
Planning Commission (the commission) during a public meeting on September 19, 2017.
At the hearing, the commission h eard testimony from relators as well as members of the
public who might be affected by the proposed solar garden. Several members of the public
voiced their opposition to the project for various reasons, including the negative impact it
would have on the natural beauty of the area and the proximity of the proposed solar panels
to a dairy farm. At the end of the hearing, one of the commiss ioners moved to deny the
request for a CUP “based on the proximity of the personal residence being 200 feet or less
away and the dairy operation that’s in the vicinity.” The comm ission then voted
unanimously to deny relators’ application request.
Following the commission’s recommendation, relators’ application came before the
county at public meetings on December 12, 2017 and January 2, 2 018. The county heard
testimony and received materials from relators, who modified the project design to address
some of the issues that were raised at the commission hearing. The county also hear d
testimony from members of the public, who again expressed vario us concerns about the

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project, including the effects stray voltage from the solar gar den could have on the
neighboring dairy farm.
At the end of the meeting on January 2, 2018, the county voted three to two to deny
relators’ CUP application. The county then issued its findings and order supporting the
decision. The county explained that an order for the issuance of a CUP must satisfy the
ten conditions set forth in Carver County, Minn., Code of Ordin ances (CCO) § 152.251
(2016). In its findings, the county held that four out of the ten ordinance conditions were
not satisfied by relators’ application.
By writ of certiorari, relators appeal the county’s decision.
D E C I S I O N
I. Standard of Review
Counties are authorized to carry out planning and zoning activi ties for the purpose
of promoting the health, safety, morals, and general welfare of the community. Minn. Stat.
§ 394.21, subd. 1 (2018). As a zoning tool, a conditional use 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 (2018).
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). The standard of
review is deferential, 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). 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

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N.W.2d 71, 75 (Minn. 2015). A decision is arbitrary and capric ious if it represents the
decision-maker’s will rather than its judgment, or if it is “ba sed 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). A CUP denial is arbitrary when an applicant
shows that all the zoning-ordinance standards required for a permit are met. Yang v. County
of Carver, 660 N.W.2d 828, 832 (Minn. App. 2003).
“The permit applicant has the burden of persuading this court t hat the reasons for
the denial either are legally insufficient or had no factual basis in the record.” Id. Relators
face a lighter burden with a CUP denial than if they were challenging a CUP approval. Id;
see also Schwardt, 656 N.W.2d 383, 386 n.4 (Minn. 2003) (stating CUP denials are held
to less deferential standard of review than CUP approvals).
II. The county’s decision to deny relators’ request for a CUP lacke d factual
support in the record.

In determining whether the county acted unreasonably, an appellate court follows a
two-step process: first we determine whether the reasons given by the county were legally
sufficient; second, if the reasons were legally sufficient, we must determine whether “the
reasons had a factual basis in the record.” RDNT, 861 N.W.2d at 75-76.
A. Legally sufficient reasons
In denying relators’ CUP application, the county determined tha t Carver County
Ordinance § 152.251 subparts (B) and (I) were not satisfied due to the potential for stray
voltage. These subparts require that:

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(B) The conditional or interim use will not be injurious to the
use and enjoyment of other property in the immediate vicinity
for purposes already permitted.

. . . .

(I) The use or development is compatible with the land uses in
the neighborhood.

CCO § 152.251(B) and (I).
The Minnesota Supreme Court has “long held that a city may deny a [ C U P ]
application if the proposed use 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). Here, the legal basis for the county’s decision resi des in the ten conditions set
out in the ordinance. Because subparts (B) and (I) reasonably related to the health, safety,
and general welfare of the comm unity, the county h a d a l e g a l l y sufficient basis for its
decision.
B. Factual basis
Relators argue that the county’s decision was unreasonable, arb itrary, and
capricious because the five grounds stated as the basis for denying the CUP lacked factual
support in the record. We agree.
These five grounds included: (1) stray voltage; (2) inadequate screening;
(3) decreased property values; (4) inconsistencies with the tow nship chapter of the
comprehensive plan; and (5) traffic.
The county conceded at oral argument, and we agree, that besides stray voltage, the
other four grounds lacked the factual basis necessary to support the county’s denial of the

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CUP. The main issue on appeal therefore, is whether adequate factual support exists in the
record for the county to find stray voltage as the reason for holding the ordinance subparts
(B) and (I) unmet, and we need not address the other bases for the county’s decision.
Stray voltage is “a phenomenon in which an electrical current—voltage that returns
to the ground after powering an appliance—passes through an obj ect not intended 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 animals,” including dairy
cows, because:
A cow’s hooves provide an excellent contact to the earth while
standing on wet concrete or mud, while at the same time the
cow is contacting the grounded- neutral system consisting of
items such as metal stanchions, stalls, feeders, milkers, and
waterers. The current simply uses the cow as a pathway in its
eventual return to the substation.

Poppler v. Wright Hennepin Co-op Elec. Ass’n, 834 N.W.2d 527, 534 (Minn. App. 2013)
(quotation omitted), aff’d, 845 N.W.2d 168 (Minn. 2014).
The county found that “based on concerns regarding the potential for stray voltage,
the proposed use would not be compatible with the adjacent dair y operations.” (emphasis
added). It also found that “t he applicant has not submitted an adequate or clear plan for
mitigating the potential for st ray voltage or for compensating neighbors in the event that
stray voltage became a problem.” The county therefore held tha t “[b]ased on public
testimony, the request may be injurious to the use and enjoyment of other properties in the
immediate vicinity for purposes already permitted, including animal agriculture (feedlots),
residences, and farms.”

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The county points to eight items in the record that it alleges supports its stray-voltage
findings:1 (1) the Minnesota Solar case; (2) the Westwood expert letter; (3) the Westwood
expert opinion; (4) the Westwood expert testimony; (5) an Xcel Energy letter;
(6) Schmidt’s testimony ; (7) the Minnesota Stray Voltage Guide and; (8) the
commissioner’s experience.2 Each of these items are addressed in turn.
1. The Minnesota Solar case
The county relies heavily on a previous case, Minnesota Solar, LLC v. Carver Cty.
Bd. of Comm’rs, in which this court affirmed the county’s denial of a solar g arden CUP.
No. A17-0504, 2017 WL 6418179, at *1 (Minn. App. Dec. 18, 2017). As an unpublished
decision, this case is not precedential and has no binding effect on this court. Furthermore,
that case was factually different from this one in several key respects. Significantly, in that
case, the electrical interconnection infrastructure for that proposed solar garden would be
adjacent to a dairy farm. Id. at *3. Here, the nearest dairy operation is over a mile away
from, not adjacent to, the point o f interconnection of the prop osed solar garden. The
Minnesota Solar case does not support the county’s decision to deny this CUP b ased on
concerns over stray voltage.

1 The county alleged these items at oral argument. While not ex plicitly structured in its
brief in this way, the county nevertheless addressed these eight items, and we will therefore
consider them.
2 At oral argument, the county raised a ninth item that it alleg ed supported its decision:
statements made in relators’ brief. However, that argument will not be considered for two
reasons: (1) it was not raised in the county’s brief to this co urt and is therefore forfeited
and (2) the brief was not a part of the record before the county when it considered the CUP
application.

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2. Westwood expert letter
The county argues that a letter containing an expert opinion provided to the county
by Douglas Mutcher, an electrical engineering manager at Westwood Professional Services
(Westwood), supports its findings concerning stray voltage. Re lators hired Westwood to
provide an expert opinion regarding the proposed solar garden and the possibility of stray
voltage. In the letter, Mutcher concludes that “it is the firm opinion of Westwood
Professional Services that any concerns associating solar [phot ovoltaic] PV plants with
increased risk of stray voltage are baseless.”
This letter directly contradicts the county’s findings that str ay voltage would be
injurious to neighboring properties. The county argues that, because this letter is identical
to a letter written by Westwood in Minnesota Solar, this court should accept the county’s
findings as it did in that case. But Minnesota Solar is a different case. In addition, the
letter submitted in that case is not a part of this record. The Westwood letter that is part of
the record before the county in this case clearly states that a solar garden does not increase
any risk of stray voltage. The letter does not support the cou nty’s decision to deny the
CUP because of stray voltage.
3. Westwood expert opinion
The county further argues that the Westwood engineer’s expert opinion supports its
decision because the engineer admits that it is theoretically possible for the solar garden to
cause stray voltage because a neutral to earth voltage (NEV) “can exist to some degree near
any utility circuit.”

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However, there is nothing in the expert opinion that suggests that anything specific
to solar gardens poses an increas ed risk of stray voltage. In fact, the expert explains that
“the contribution of a properly designed and constructed solar PV plan to instances of NEV
in normal operation is inherently almost non-existent” and that a different type of facility,
such as a barn or residential development would “be more likely to have the potential to
create stray voltage than a solar PV plant, given that they are more prone to exhibiting
many of the common causes of stray voltage such as unbalanced o r single phase loads,
while often lacking the same attention to maintenance.” The Westwood engineer’s expert
opinion does not support the county’s decision.
4. Westwood testimony
The county argues that the testim ony of the Westwood profession al engineer in
Minnesota Solar also supports the board’s findi ngs. However, no Westwood engi neer
testified in any of the hearings in this case. The testimony heard in Minnesota Solar is not
a part of this record, and ther efore cannot support the county’ s findings concerning stray
voltage.
5. Xcel Energy letter
The county also points to a lette r from Xcel Energy concerning the potential for
stray voltage as evidence supporting the county’s findings. But again, that letter was part
of the record in Minnesota Solar. It is not a part of the record here. This letter therefore
does not support the county’s findings.

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6. Schmidt testimony
The county argues that the testimony of Kellen Schmidt supports its denial of the
CUP because of stray-voltage concerns. At the commission heari ng on September 19,
2017, Schmidt testified that, as a lineman, he had experience w orking on solar projects
similar to this one. He testified that the companies who build these solar gardens want
their bids to come in “cheap and under budget,” and therefore m a y u s e c h e a p p a r t s .
Schmidt testified that he was concerned about this project beca use he did not know how
these cheap parts may affect “stray voltage issues.”
In Trisko v. City of Waite Park, this court determined that, in denying a request for
a CUP to operate a granite quarry, a city council had “improper ly discounted” expert
evidence that the quarry would not p r o d u c e d u s t t h a t p o s e d a h ealth risk “in favor of
neighbors’ unsubstantiated con cerns” that the quarry would prod uce harmful dust. 566
N.W.2d 349, 356 (Minn. App. 1997), review denied (Minn. Sept. 25, 1997). We stated
that, “because the neighbors based their fears of an expected i ncrease in respiratory
problems on unscientific speculation, not medical fact, the city acted arbitrarily by ignoring
[the CUP applicant’s] expert evidence.”
Similarly here, Schmidt’s testimony is based on mere speculation that relators may
use cheap parts based on his past experience on similar project s. Schmidt did not testify
about any actual firsthand knowledge of relators using cheap pa rts to manufacture the
proposed solar garden, nor did he provide any facts to support his claim. And importantly,
Schmidt did not state that cheap parts would lead to stray voltage, he just testified that “we
don’t know.”

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Relators, in contrast, provided an expert opinion from an engin eer who explained
that solar gardens do not increase the risk of stray voltage. Relators also agreed to the
condition that if any stray volta ge did occur as a result of so me sort of manufacturing
defect, they would be responsible for remediating it. Schmidt’ s testimony, which is
unsupported speculation that is directly contradicted by expert evidence, does not support
the county’s findings.
7. Minnesota Stray Voltage Guide
The county also considered the M innesota Stray Voltage Guide (t he guide) when
making its decision, and the county argues that it supports its findings that stray voltage
from the proposed solar garden c ould negatively impact the loca l dairy farm. This is not
persuasive for three reasons: (1 ) this is a general guide about stray voltage; (2) it says
nothing about stray voltage with respect to solar gardens and; (3) it says nothing specific
about stray voltage with regards to this solar garden.
First, the guide was created as a reference tool for farmers and electrical contractors
that outlines steps they can take to discover and resolve stray-voltage concerns on livestock
farms. The guide lists common causes of stray voltage, which c an be on or off-farm, and
include “damaged neutral conducto rs or conductor insulation,” “ improper grounding and
bonding of electrical systems and equipment,” and “unintentional ground fault connections
at neighboring properties.” The common causes of stray voltage, as outlined by the guide,
are focused on damaged conductors or equipment that is not functioning properly. Relying
on this guide could therefore be used to deny any solar garden CUP application.

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Second, the guide does not reference solar gardens at all, and makes it clear that
stray voltage can occur from a variety of sources, usually relating to old wiring or improper
grounding. This is corroborated by the Westwood engineer’s exp ert opinion in this case,
which explained that, because sol ar plants have protection syst ems in place to “isolate
faults within the facility and contribute balanced three-phase power to the grid, they do not
exacerbate any of these risk factors for stray voltage.”
Third, the guide does not address the specific solar garden at issue in this case. In
its order, the county only references the guide to state that relators’ proposed plan included
tests to “verify whether or not stray voltage is occurring according to the threshold defined
by the MN Stray Voltage Guide.” The guide provides a sta ndard for how to look out for
stray voltage. But in its own order, the county apparently acknowledged that relators were
doing everything right to make sure that stray voltage did not b e c o m e a p r o b l e m , i n
accordance with the guide’s standards. The guide therefore does not provide a factual basis
for the county, specific to relators’ proposed solar garden, to deny the CUP based on
concerns over stray voltage impacting the dairy operation.
8. Commissioners’ experience
The county argues that the commissioners who served on the board in this case used
their past knowledge and experience learned in the Minnesota Solar case as a basis for their
decision here. As stated before, that case is not precedential and has no binding effect on
this court. However, the county argues that, because this board was made up of the same
people who served on the Minnesot a Solar application, the board relied on “its collective

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knowledge and past experience i n considering and ruling on Minn esota Solar’s CUP
application as a basis for its decision in this case.”
Minnesota courts have accepted reliance on collective knowledge and past
experience in different contexts. See, e.g., Schroeder v. St. Louis County, 708 N.W.2d 497,
508 (Minn. 2006) (affirming decision “based on the collective k nowledge and experience
of the county road superintendents”); Anderson v. Anoka Hennepin Indep. Sch. Dist. 11 ,
678 N.W.2d 651, 660 (Minn. 2004) (affirming school’s reliance o n “collective expertise
and professional judgment to make discretionary operational dec isions”); Commc’ns.
Props., Inc. v. County of Steele , 506 N.W.2d 670, 672 (Minn. App. 1993) (noting “city
officials may rely on their general knowledge”).
Even if this principle applies to a county’s denial of a CUP, t here still needs to be
factual evidence in the record that the commissioners relied on this past experience. The
county provided none. The county’s position is purely speculative, arguing that the record
“suggests” the commissioners relied on their past experience. However the record is
devoid of any evidence that demonstrates that the commissioners actually relied on their
past knowledge and experience in making their decision in this case. The record fails to
support this argument.
In sum, none of the eight items provide support for the county ’s findings or decision
to deny the CUP. Instead, the re cord is comprised of facts tha t contradict the county’s
findings. The Westwood engineer e xplained that any concerns ab out the relationship
between stray voltage and a sola r plant are “baseless.” Public testimony revealed that
neighbors, including one dairy f armer, are “concerned” about th e potential for stray

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voltage. However no testimony we nt beyond unsubstantiated conc erns. The one dairy
farmer who testified stated that his concern was about who woul d be testing for stray
voltage, not that it could occur in the first place. Relators addressed these concerns from
neighbors by agreeing to a plan having permit conditions requir ing them to test for stray
voltage and holding them responsible for any damages related to stray voltage.
In making its decision, a board may not “reject expert testimon y without adequate
supporting reasons.” SuperAmerica Group, Inc. v. City of Little Canada, 539 N.W.2d 264,
267 (Minn. App. 1995), review denied (Minn. Jan. 5, 1996). “Non-experts can supply
adequate reasons to counter or reject expert opinions, but thos e reasons must be concrete
and based on observations, not me rely on fears or speculation.” BECA of Alexandria,
L.L.P. v. Cty. of Douglas by Bd. of Comm’rs, 607 N.W.2d 459, 463 (Minn. App. 2000).
Here, the county based its findings on public testimony, ignoring scientific evidence
that solar gardens do not increase the risk for stray voltage. That public testimony was
comprised only of vague concerns about the potential for stray voltage rather than
reasoning based on fact or experience. Because the county impr operly discounted expert
evidence in favor of generalized public concern, it lacked factual support for its decision,
and we therefore conclude that the county acted arbitrarily and capriciously. Because of
that conclusion, we need not address relators’ equal-protection claims.
We reverse the county’s decision and remand with directions that the county issue
the CUP subject to reasonable conditions.
Reversed and remanded.