In re An Order Finding Certain Facts and Ordering the Denial of a Conditional Use Permit

This opinion will be unpublished and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
A18-0432

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 March 25, 2019
Reversed and remanded
Cochran, Judge

Carver County Board of Commissioners
File No. PZ20170035

Timothy M. Kelley, Andrew J. Gi bbons, Thomas Burman, Stinson Le onard Street LLP,
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 Hooten , Presiding Judge; Reyes, Judg e; and Cochran,
Judge.
U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
Relators challenge the decision by the Carver County Board of C ommissioners to
deny their application for a c onditional-use permit, arguing th at the decision is arbitrary,

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capricious, and unreasonable. Bec ause the reasons cited for de nial are not supported by
evidence in the record, the county’s decision is unreasonable, arbitrary, and capricious. We
reverse and remand.
FACTS
In July 2017, relators United States Solar Corporation and USS Hancock Solar LLC
(collectively U.S. Solar) submitt ed an application for a condit ional-use permit (CUP) to
construct and operate a one-megawatt solar energy system (solar garden) on eight to nine
acres of land in Hancock Township, Carver County.
The application came before the Carver County Planning Commissi on during a
public meeting in August 2017. At that hearing, the planning commission heard comments
from U.S. Solar as well as members of the public who might be a ffected by the proposed
solar garden. Several members o f the public voiced their oppos ition to the project for a
variety of reasons, including an assertion that it would negati vely impact land values and
concerns that the project could cause stray voltage. Stray voltage occurs when an electrical
current passes through an object not intended as a conductor and can affect cows by passing
through their hooves. At the end of the hearing, one of the commissioners moved to deny
U.S. Solar’s application for the CUP based on concerns about st ray voltage affecting a
dairy farm located 700 feet from the site. The planning commission voted unanimously to
recommend denying the CUP.
Following the planning commission’s vote, U.S. Solar made some modifications to
its proposal, including moving the site so that it would be mor e than 1,000 feet from the

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nearest dairy farm. U.S. Solar also moved the point of interco nnection with the utility
company, Xcel Energy, to be over 1,500 feet from the nearest dairy farm.
On February 13, 2018, the revised application came before the Carver County Board
of Commissioners (the county) for a public hearing. During tha t hearing, U.S. Solar
indicated that it was willing to put up at least $10,000 for an electrical reliability fund “to
make modifications to be used to have stray voltage testing at any interval” on the
neighboring dairy farm. U.S. Solar again indicated its position that the solar garden is not
likely to cause stray voltage and that the solar garden will be built with multiple
redundancies to automatically dis connect from the electrical gr id in the event of a
malfunction. Prior to the hearing, U.S. Solar submitted writte n materials to the county,
including the Minnesota Stray Voltage Guide and a letter from an expert stating that “any
concerns associating solar PV plants with increased risk of stray voltage are baseless.” The
expert’s letter indicated that many other projects, such as a storage warehouse, a pole barn,
a manufacturing facility, a residential development, or even another dairy operation would
be more likely to create stray voltage than a solar garden. Th e county also heard more
testimony from members of the public, who again expressed concern about stray voltage.
The county voted unanimously to draft an order denying the CUP application.
On February 27, 2018, the county again took up the issue. U.S. Solar indicated that
it had secured the services of a stray voltage expert whom it w ould pay to test any farm
within one-half mile of the sola r garden for stray voltage befo re and after construction of
the solar garden. U.S. Solar stated that it would pay the expert to give advice to the farmers
on any potential sources of stray voltage on their farms and that it “will commit to pay for

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mitigation work, if the before-and-after testing reveals any in crease in stray voltage.” At
the end of the meeting, the cou nty voted 4-1 to deny U.S. Solar ’s application for a CUP.
The county then issued its order finding certain facts and orde ring the denial of the CUP
application. By writ of certiorari, U.S. Solar appeals 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 t he c om m uni t y. Mi n n .
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). This
court “will reverse a governing body’s decision regarding a [CU P] 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 judgment, or if it is “based on whim
or is devoid of articulated reasons.” Appeal of Krenik, 903 N.W.2d 224, 231 (Minn. 2017)
(quotation omitted). A CUP denia l is arbitrary when an applica nt shows that all the
zoning-ordinance standards required for a permit are met. Yang v. County of Carver, 660

5
N.W.2d 828, 832 (Minn. App. 2003). “The permit applicant has the burden of persuading
this court that the reasons for the denial either are legally i nsufficient or had no factual
basis in the record.” Id.
II. The county’s decision to deny U.S . Solar’s request for a CUP du e to concerns
about stray voltage is arbitrary, capricious, and unreasonable.

In determining whether the county acted arbitrarily, capriciously, or unreasonably,
an appellate court follows a two-step process. RDNT, 861 N.W.2d at 75. We first
determine whether the reasons giv en by the county are legally s ufficient. Id. at 75-76.
Second, if the reasons are legally sufficient, we must determine whether “the reasons had
a factual basis in the record.” Id. at 76.
A. Legal Reasons for Decision
In denying U.S. Solar’s CUP application, the county determined that Carver County,
Minn., Code of Ordinances (CCO) § 152.251(B), (I) (2016), were not satisfied due to the
potential for stray voltage and a decrease in property values. These subparts require:
(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), (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

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omitted). Here, the legal basis for the county’s decision resides in the ten subparts set out
in the ordinance. Because subparts (B) and (I) are 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 for Decision
U.S. Solar argues that the county’s decision to deny their application for a CUP due
to the potential for stray voltage is unreasonable, arbitrary, and capricious because it lacked
factual support in the record. We agree.
“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 Coop. 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’s order denyi ng the CUP found that “[c]oncerns remain regarding the
potential for stray voltage.” The county then concluded that “[b]ased on public testimony,
and comments received at the Board of Commissioners’ meeting on February 13, 2018,

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the request will be injurious to the use and enjoyment of other property in the immediate
vicinity” and that “with regard to the potential for stray volt age, the proposed use would
not be compatible with the adj acent dairy operation, and it may decrease surrounding
property values.”
U.S. Solar argues that the recor d contains no factual support f or the county’s
determination that the solar gar den will be injurious to the us e and enjoyment of other
properties or that it is incompatible with neighboring properti es. U.S. Solar notes that it
presented an uncontroverted expert opinion indicating that the solar garden is not likely to
cause stray voltage and contends that the conditions it proposed for the CUP mitigate any
possible concern about stray voltage. The county disagrees, arguing that its decision is
supported by: (1) statements from board members, (2) statements from the neighbors, and
(3) the board members’ recent experience with other solar projects. The county also argues
that it properly rejected the opinion letter from U.S. Solar’s expert and that U.S. Solar failed
to propose sufficient conditions to mitigate concerns about stray voltage. We consider each
of these items in turn.
1. Commissioners’ Statements about Stray Voltage
The county first argues that sta tements by Chairman Gayle Degle r and
Commissioner James Ische regarding their experience with stray voltage support the denial
of the CUP. But, those personal experiences did not involve a solar garden. Chairman
Degler stated that he knew a farmer who had stray voltage issues as a result of “the utility
up the roadways.” He also noted that the farmer was not agains t solar power and that the
farmer later installed solar panels himself. Although Chairman Degler mentioned the

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problems caused by stray voltage in general, he ultimately vote d to grant U.S. Solar’s
application for the CUP for this solar garden.
Similarly, Commissioner Ische referred generally to the dangers of stray voltage,
but he did not speak about any instances of solar gardens causi ng stray voltage or any
concrete information that solar gardens could cause stray volta ge. A generalized concern
about stray voltage from non-solar sources, without more, is in sufficient to find that this
particular solar garden poses any real possibility of causing stray voltage on dairy farms in
the area. See Chanhassen Estates Residents Ass’n v. City of Chanhassen, 342 N.W.2d 335,
340 (Minn. 1984) (explaining tha t denial of a CUP “must be base d on something more
concrete than neighborhood op position and expressions of concer n for public safety and
welfare”). The commissioners’ anecdotal comments about stray voltage do not support the
county’s decision to deny the CUP for this solar garden.
2. Neighbors’ Testimony
The county also points to the co mments of the nearby dairy farm ers who were
concerned about stray voltage. But, like the commissioners, th e neighbors spoke only
about their concerns about stray voltage in general. They did not speak to any knowledge
that a solar garden could cause stray voltage. The neighbors’ comments regarding their
general concerns about stray voltage do not support the county’s decision to deny the CUP
for this solar garden.
3. The Minnesota Solar Case
The county argues that its denial of the CUP is also supported by a previous case,
Minnesota Solar, LLC v. Ca rver Cty. Bd. of Comm’rs , in which this court affirmed the

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county’s denial of a solar garden CUP. No. A17-0504, 2017 WL 6 418179, at *1 (Minn.
App. Dec. 18, 2017). As an unpublished decision, that case is not precedential and has no
binding effect. Gen. Cas. Co. of Wis. v. Wozniak Travel, Inc. , 762 N.W.2d 572, 575 n.2
(Minn. 2009) (stating that an “u npublished Minnesota court of a ppeals decision does not
constitute precedent”). Furthermore, the Minnesota Solar case is factually different from
this one. In that case, the electrical interconnection infrast ructure for the proposed solar
garden would have been “adjacent” to a dairy farm. 2017 WL 641 8179, at *3. Here, the
solar garden is over 1,000 feet from the nearest dairy farm and the point of interconnection
with the utility is over 1,500 feet from the nearest dairy farm . Minnesota Solar a l s o
involved a four-megawatt solar garden, rather than the one-mega watt solar garden in this
case. Id. at *1. Although this court affirmed the denial of the CUP in Minnesota Solar,
the opinion noted that it was “a very close case.” Id. at *4.
The county also argues that expert testimony from the Minnesota S o l a r c a s e
supports its decision in this case. The county notes that when it considered the application
for a CUP in the Minnesota Solar case, Minnesota Solar’s expert stated that “with these
solar gardens, there is always going to be a minimal amount of stray voltage.” Id. at *3
(quotation omitted). 1 T h e c o u n t y a r g u e s t h a t i t was entitled to rely on that previous
statement to support its denial of the CUP in this case. In su pport of its argument, the
county notes that the Minnesota Supreme Court has accepted gove rnment officials’
reliance on collective knowledge and past experience in differe nt contexts. See, e.g. ,

1 We note that U.S. Solar asserted during oral arguments that th e statement was taken out
of context, but the transcript of that hearing is not a part of the record in this case.

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Schroeder v. St. Louis County, 708 N.W.2d 497, 508 (Minn. 2006) (concluding that county
was entitled to vicarious official immunity where its decision to permit drivers to grade
roads against traffic was “based on the collective knowledge 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 on “collecti ve expertise and
professional judgment to make di scretionary operational decisions”); see also Commc’ns
Props., Inc. v. County of Steele, 506 N.W.2d 670, 672 (Minn. App. 1993) (noting that city
officials from small communities may rely on their general know ledge, but declining to
extend that principle to a county’s zoning decision).
Even if this principle applies to a county’s denial of a CUP, the record must reflect
that the commissioners actually relied on this past experience in making their decision to
deny the CUP. Cf. Commc’ns Props., Inc., 506 N.W.2d at 672 (“Relaxing the requirement
for findings based on expert opinions or other evidence should be narrowly construed as
an exception to the general rule . . . .”). Here, there is no evidence that the county actually
relied on expert testimony from the Minnesota Solar CUP proceeding as a basis to deny
U.S. Solar’s request for a CUP. Although Commissioner Ische discussed prior applications
for CUPs to build solar gardens during the planning commission hearing as well as the
February 13 county hearing, he never referenced any previous ex pert testimony that
indicated a solar garden would cause stray voltage. The commis sioners questioned U.S.
Solar at length about a number of topics, but none of the commi ssioners ever raised a
question about this previous expert testimony. Furthermore, the county’s order explicitly
states that its decision is based on “public testimony, and comments received at the Board

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of Commissioners’ meeting on February 13, 2018.” The record fa ils to support the
county’s argument that it relied on previous expert testimony.
4. U.S. Solar’s Expert
The county argues that it properly discounted U.S. Solar’s expe rt’s opinion that
concerns about solar gardens increasing the likelihood of stray voltage are baseless. The
expert’s opinion noted that stra y voltage can occur in any elec trical system if there are
design flaws or damage to the system. But the expert indicated that a solar garden is
unlikely to suffer from these conditions because solar gardens are designed and constructed
by licensed professionals and revi ewed by electrical inspectors and licensed third-party
engineers. Furthermore, the designs are such that if damage occurs, such as a high voltage
cable being cut, the system automatically stops the flow of cur rent to isolate the solar
garden. The expert concluded that as a result of the extra lay ers of protection, a solar
garden is less likely to cause stray voltage than many other co mmon projects, such as a
storage warehouse, a residential development, or even another dairy operation.
Minnesota caselaw establishes that “[a] city council is free to disregard an expert’s
opinion when it is presented with conflicting non-experts’ opinions, including those of area
residents, so long as the reasons are concrete and based on observations, not merely on fear
or speculation.” Roselawn Cemetery v. City of Roseville , 689 N.W.2d 254, 260 (Minn.
App. 2004).
Here, as discussed above, there is no “concrete” information in the record that
contradicts the expert’s opini on that concerns associating sola r gardens “with increased
risk of stray voltage are baseless.” The county argues that it was entitled to reject the expert

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opinion based on comments from the commissioners that stray vol t a g e c a n c o m e f r o m
off-site utilities and that stray voltage can occur from human error. But neither of those
facts is disputed. The expert opinion states that human error can cause stray voltage in any
electrical system, but it goes on to state that a solar garden is less likely to suffer from
human error than many other projects because there are many mor e checks and balances
put into place for a solar garden than for other projects.
In deciding to deny the CUP, the county based its decision on p ublic testimony,
disregarding scientific evidence that solar gardens do not increase the risk for stray voltage.
That public testimony was compri sed only of vague concerns and speculation about the
potential for stray voltage rather than reasoning based on concrete facts or experience and
was insufficient to discount the expert opinion. Because the county improperly discounted
expert evidence in favor of generalized public concern, its dec ision to deny the CUP due
to concerns about “the potential for stray voltage” lacked a factual basis in the record.
5. Conditions to Mitigate Concerns about Stray Voltage
Finally, the county argues that U.S. Solar failed to propose conditions sufficient to
alleviate its concerns about stray voltage. “If 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.” Loncorich v. Buss, 868 N.W.2d 755, 761 (Minn.
App. 2015) (quotation omitted). I t is the applicants’ burden t o propose conditions that
would mitigate any concerns. RDNT, 861 N.W.2d at 78.

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In this case, U.S. Solar agreed to pay to test nearby farms for stray voltage before,
during, and after construction of the solar garden and to pay t o mitigate any stray voltage
coming from the solar garden. U .S. Solar also indicated that i t is willing to create an
“electrical reliability fund,” to alleviate neighbors’ concerns about stray voltage.
During oral arguments, the county conceded that it could not po int to any concrete
evidence of solar gardens causing stray voltage, but it argued that because solar gardens
are a relatively new technology, its concerns are justified even without concrete evidence.
To the extent the county’s concerns were reasonable, despite the lack of concrete evidence,
U.S. Solar’s agreement to test for stray voltage, to pay to mitigate any stray voltage created
by the solar garden, and to cr eate an “electrical reliability f und” eliminated any conflict
with the zoning ordinance’s standards.
U.S. Solar has met its burden to demonstrate that the county’s reasons for denying
its application for a CUP had no factual basis in the record. See Yang, 660 N.W.2d at 832.
Furthermore, U.S. Solar met its burden to propose conditions th at would mitigate any
potential concerns arising out of its solar garden. See RDNT, 861 N.W.2d at 78.
Accordingly, the county’s denial of the CUP due to concerns about stray voltage is arbitrary
and capricious.
III. The county’s decision to deny U.S . Solar’s request for a CUP du e to concerns
about property values is arbitrary, capricious, and unreasonable.

U.S. Solar also argues that the county’s rationale for denying the CUP based on
concerns that the proposal would diminish neighboring property values is not a legally
valid reason to deny a CUP and is not factually supported.

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A. Legal Reason for Decision
The county cites to Perschbacher v. Freeborn Cty. Bd. of Comm’rs , 883 N.W.2d
637 (Minn. App. 2016), to support its argument that a decrease in property values is a valid
basis to deny a CUP. But the zoning ordinance at issue in that case stated that a CUP could
be granted if it would “not sub stantially diminish and impair p roperty values within the
immediate vicinity.” Freeborn County, Minn., Zoning Ordinance, art. VIII, § 42–614,
subd. 1; see Perschbacher, 883 N.W.2d at 639. No such language exists in the Carver
County Zoning Ordinance. U.S. Solar argues that, because the zoning ordinance does not
specifically mention property values, the county may not deny a CUP on the basis that it
reduces property values. We need not resolve this dispute because, even assuming that
decreased property values are a sufficient legal basis to deny a CUP under the Carver
County Zoning Ordinance, the record does not support that the solar garden will decrease
surrounding property values.
B. Factual Basis for Decision
T h i s c o u r t h a s p r e v i o u s l y r e v e r s e d t h e d e n i a l o f a C U P b a s e d o n a d e c r e a s e i n
property values where the county did not make an express findin g that the project would
decrease property values. See City of Barnum v. County of Carlton, 386 N.W.2d 770, 775
(Minn. App. 1986). This court explained:
The board’s statement that “it appears that” the treatment
facility “would substantially d iminish and impair property
values” is an insufficient explanation for its decision. The
board gives no factual basis for its findings. It merely recit es
the language of the zoning ordinance. It does not even state
that the board expressly determined that property values would
be impaired; it merely states that “it appears that” they would

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be. This failure by the county board to make sufficient findings
in support of its decision makes this court’s task highly
impractical. There is no way to determine from the record
before this court what the county board’s thinking was when it
denied the conditional use permit.

Id. The court declined to remand the issue for further findings f rom the county, stating
that, “Remanding this case for findings would be unfair to appe llants because of the risk
that any findings made by the county board at this late date would merely rationalize their
previous decision.” Id. at 776.
Here, the county’s order similarl y finds that the solar garden “may decrease
surrounding property values.” (Em phasis added.) This finding is insufficient to support
the county’s decision to deny the CUP, and the record does not contain evidence to support
a finding that the solar garden will decrease property values.
During the hearings on U.S. Solar’s application, only one neigh bor suggested that
the solar garden “will have a negative impact on [their] proper ty values.” The neighbor
did not explain the basis for this assertion. Beyond this sing le comment about the impact
of this particular proposed solar garden on property values, th e record also contains
comments about other solar garden projects that were under cons ideration in Carver
County. For example, at the February 13 hearing, an individual submitted letters from two
realtors. The first realtor, who recently sold a property near a solar garden, wrote that the
solar garden was a drawback for some buyers. The second realtor wrote that disclosing the
existence of a solar garden caused “many buyers” to no longer consider a property that he
was selling and opined that being next to a solar garden decrea sed property values. But,
notably, neither realtor wrote th at the properties they were se lling sold for less than they

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otherwise would have because of the solar gardens, or pointed to any actual examples of a
decrease in property values.
In contrast, U.S. Solar submitted two resources to support its position that the solar
garden would not impact property values. The first is a citation to a study finding that solar
gardens across nine states 2 did not negatively affect surrounding property values. The
second is an article from the Chisago County Press indicating that, according to the Chisago
County Board, a 1,000-acre solar garden, roughly 100 times the size of the solar garden at
issue in this case, did not affect neighboring property values. Although the county was not
required to credit these resources, the county had no concrete evidence to the contrary. The
comments about potential decreas es in property values do not ri s e a b o v e t h e l e v e l o f
general concern and speculation and are insufficient to support denial of the CUP.
Because the record does not support the county’s factual basis for denial of the CUP,
we reverse the county’s decision and remand with directions that the county issue the CUP
subject to reasonable conditions.
Reversed and remanded.

2 We note that during the February 13 hearing, the study is refe rred to as the “North
Carolina Study,” and a member of the public states that the stu dy focuses primarily on
North Carolina.