In the Matter of the Application of Park Rapids Clay Dusters, Inc., for 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This opinion will be unpublished and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
A18-0571

In the Matter of the Application of
Park Rapids Clay Dusters, Inc.,
for a Conditional Use Permit.

Filed March 18, 2019
Affirmed
Smith, Tracy M., Judge

Wadena County Board of Commissioners
File No. ZP18-8500

Mark Thieroff, Siegel Brill, P.A ., Minneapolis, Minnesota (for relators Randy Wenthold,
Tami Wenthold, and Went North, LLC)

Matthew S. Van Bruggen, Nicole J. Tabbut, Stephen F. Rufer, Pemberton, Sorlie, Rufer &
Kershner, P.L.L.P., Wadena, Minnesota (for respondent Park Rapids Clay Dusters, Inc.)

Scott T. Anderson, Kristin C. Nierengarten, Rupp, Anderson, Squ ires & Waldspurger,
Minneapolis, Minnesota (for respondent Wadena County)

Considered and decided by Halbr ooks, Presiding Judge; Larkin, 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
Respondent Wadena County Board o f Commissioners, over the oppos ition of
relators Randy and Tami Wenthold and their business, Went North LLC (collectively, the
Wentholds), approved a conditional-use permit that allowed respondent Park Rapids Clay
Dusters Inc. (PRCD) to construc t and operate a shooting range o n its property. In this

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certiorari appeal, the Wentholds argue that a shooting range is not allowed as a conditional
use in the relevant zone under t he Wadena County, Minn., Zoning Ordinance (2017)
(WCZO). They also argue that, eve n if a shooting range can be a conditional use in that
zone, the county acted arbitrar ily and capriciously by allowing t h e u s e d e s p i t e t h e i r
arguments that it will cause offensive noise and will result in shot leaving the property and
falling onto adjoining state forest land. We affirm.
FACTS
PRCD was gifted 40 acres of unproductive farm land in Wadena Co unty. The
property is bounded on the west, south, and east by the Hunters ville State Forest and on
the north by agricultural property that is owned by the donor o f the property. The
Wentholds own nonadjacent property approximately two miles northwest of the property.
They operate a bed-and-breakfas t and corral business that provi des accommodations for
horse trail riders who use trails in the state forest.
On February 14, 2018, PRCD applied for a conditional-use permit, seeking to build
a shooting range for high school clay target leagues, firearm t raining and safety courses,
and public use. The proposed ran ge would include a clubhouse, f our storage containers,
five trap houses, and two portable toilets. PRCD included with its application, among other
documents, a noise assessment performed using software to model the propagation of
sound around the property.
In Wadena County, applications for conditional-use permits go through a two-stage
review process. First, the appli cation is reviewed by the Waden a County Planning
Commission. WCZO § 21.B. The planning commission is required to hold at least one

3
public hearing regarding the application. Id. Based on the application and the statements at
the hearing or hearings, the planning commission makes findings and a recommendation
about whether to grant the conditional-use permit. Id. The planning commission must make
findings on seven prerequisites to any recommendation that the county allow the
conditional use,1 WCZO § 21.D, and submit a report to the county board containin g its
findings and recommendations, WCZO § 21.C. After the county boa rd holds “whatever
public hearings it deems advisable,” it makes the final decision about whether to grant the
conditional-use permit. Id.

1 These are:

1. That the Conditional Use will not be injurious to the
use and enjoyment of other property in the immediate vicinity
for the purposes already permitte d, nor substantially diminish
and impair property values within the immediate vicinity;
2. That the establishment of the Conditional Use will
not impede the normal and orderly development and
improvement of surrounding vacant property for uses
predominant in the area;
3. That adequate utilities, acc ess roads, drainage and
other necessary facilities have been or are being provided;
4. That adequate measures have been or will be taken
to provide sufficient off-street parking and loading space to
serve the proposed use;
5. That adequate measures have been or will be taken
to prevent or control offensiv e odor, fumes, dust, noise and
vibration, so that none of these will constitute a nuisance, an d
to control lighted signs and other lights in such a manner that
no disturbance to neighboring properties will result.
6. That the use is consistent with our Land Use
Controls Ordinance;
7. That the use is not in conflict with the Wadena
County Comprehensive Plan.

WCZO § 21.D.

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On March 15, 2018, the planning commission held a public hearin g on PRCD’s
application. At that meeting, testimony from community members generally expressed
either that allowing the shooting range would be good because high school students needed
a safe place to shoot or that the location was wrong because noise and shotfall outside the
property would interfere with la nd values and with recreation o n the adjacent state forest
land.
At the end of the hearing, the planning commission voted on findings of fact. It did
not find that three of the seven prerequisites were satisfied. Specifically, it concluded that
the use was not compatible with the surrounding area or would d epreciate nearby
properties, that the use would impede development of surrounding property, and that there
were not adequate measures to control noise. Thereafter, propon ents of the use asked for
the opportunity to respond to oppo nents and sought a way to rem edy the application’s
shortcomings. The planning commission tabled the application fo r research on the issues
of noise and safety and decided to conduct a site visit.
On March 21, members of the planning commission visited the property. They also
traveled to several nearby locations and listened while guns we re fired on the property in
order to hear for themselves how audible the gunshots were. Aft er the site visit, the
planning commission held a second public meeting. Discussion fo cused primarily on
whether the noise would be intrusive and the hours in which sho oting would occur.
Following the public-comment period, the planning commission re voted on the findings,
reversing two findings to conclude that the use would be consistent with the area and would
not impede development of nearby vacant land. The other finding s remained the same.

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Thus, six of the mandatory pre requisites were found to be satis fied, but one—that there
were adequate measures in place to prevent offensive noise—was not. Nevertheless, the
planning commission voted to approve the conditional use with six conditions: (1) limited
hours of operation, (2) limited types of firearm, (3) no shooting would be permitted during
two particular horse-riding events, (4) no one under the age of 18 would be permitted to
shoot a handgun, (5) a range saf ety officer was to be on site a ny time the range would be
open, and (6) any incidents had to be reported to the sheriff’s office.
In preparation for the county board’s hearing on the permit application, staff for the
county recommended amending the finding of inadequate noise-con trol measures to find
that there were adequate measu res. Staff also recommended that a seventh condition be
imposed—specifically, that “a tree line buffer, consisting of 3-4 or more rows of coniferous
trees, be established around the inside perimeter of the property” to help absorb noise.
On April 3, at a meeting of the Wadena County Board of Commissi oners, the
Wentholds and their attorney ar gued against approval of the con ditional use. The
Wentholds contended that the proposed use had grown more intens ive over time, that the
simulated noise study was inaccurate, and that noise levels would exceed the thresholds of
Chapter 87A of the Minnesota Sta tutes. Their attorney argued th at shooting ranges were
not allowed as a conditional use within the relevant zone, that the simulated noise model
did not comply with Minnesota law, and that the shotfall zone w ould extend beyond the
property, causing interference with adjoining properties.
The proponents of the use also spoke, stating that there was no problem with the
shot because they would be throwing clay pigeons at narrower angles, resulting in narrower

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shotfall zones, and, alternatively, because the Minnesota Department of Natural Resources
(DNR) did not object to some shot falling on state land. Finall y, a county staff member
spoke, summarizing the staff recommendations for amending the f indings, adding a
condition, and approving the use.
The county board voted unanimously to accept the staff recommen dations and the
planning commission’s recommendation. The board amended the finding relating to noise,
imposed the seventh condition re quiring a tree-line buffer, and approved the conditional
use.
The Wentholds appeal by writ of certiorari.
D E C I S I O N
The standard of review of a gra nt of a conditional-use permit is deferential because
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 independently review a
county’s grant of a conditional-use permit “to determine if it is unreasonable, arbitrary, or
capricious.” Loncorich v. Buss, 868 N.W.2d 755, 759 (Minn. App. 2015). A county acts
unreasonably if the reasons for its decision are legally insufficient or lack a factual basis in
the record. RDNT, LLC v. City of Bloomington, 861 N.W.2d 71, 75-76 (Minn. 2015).
I. A shooting range is a conditional use in the A-2 district.
The Wentholds argue that the county’s decision was arbitrary an d capricious
because the proposed use of the property as a shooting range was not permitted under the
ordinance.

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The WCZO divides Wadena County into a number of districts, in which certain uses
are permitted, certain uses ar e conditional, and other uses are prohibited. The property is
located in the A-2 district, the mixed agriculture-forestry district, which is established in
section 7 of the ordinance. Section 7.B identifies 13 permitted uses in the A-2 district; a
shooting range is not among them. Section 7.C identifies 14 con ditional uses that may be
approved, subject to the ordinan ce’s general requirements for c onditional-use permits;
again, a shooting range is not among them. However, section 7.C’s list of conditional uses
also includes a fifteenth item—a catchall provision: “If a use is not listed or does not have
a designated type of use, the use may be allowed in the district as a conditional use.” WCZO
§ 7.C.15. The county relied on this catchall provision in grant ing the conditional-use
permit.
The parties dispute the meaning of subsection 15. According to the Wentholds, “not
listed” means that a use must not be listed anywhere else in the ordinance for the subsection
to apply. They argue that because shooting ranges are listed as a conditional use in the
recreational district, see WCZO § 13A.C.1-.3, shooting ranges are “listed” and therefore
fall outside the scope of secti on 7.C.15. In contrast, the coun ty argues that “not listed”
simply means not listed in section 7 of the ordinance, governing the A-2 district. Under the
county’s interpretation, the catchall provision allows any use that is not otherwise permitted
in the A-2 district to be a conditional use, provided it meets the ordinance’s general
conditional-use requirements.
The interpretation of an ordinance is a question of law that we review de novo. Prior
Lake Aggregates, Inc. v. City of Savage , 349 N.W.2d 575, 578 (Minn. App. 1984). The

8
purpose of our interpretation is to ascertain the intent of the legislative body. State v. Vasko,
889 N.W.2d 551, 556 (Minn. 2017) (interpreting city ordinance). When interpreting an
ordinance, we “give words and phrases their plain and ordinary meaning.” Id.; see also
Frank’s Nursery Sales, Inc. v. City of Roseville , 295 N.W.2d 604, 608-09 (Minn. 1980)
(interpreting zoning ordinance). If the ordinance is unambiguou s, we apply its plain
meaning. See Vasko, 889 N.W.2d at 556. If, however, the ordinance is susceptible of two
or more reasonable interpretations, it is ambiguous, and we tur n to canons of statutory
construction to determine its meaning. Id.
The question for us is the plai n meaning of the phrase “not li sted.” Because the
ordinance does not say what it means to be “listed,” we may look to dictionary definitions
to determine the plain meaning of the term. See State v. Carson , 902 N.W.2d 441, 445
(Minn. 2017) (determining meaning of “to be listed” in Minnesot a’s impaired-driving
statute). To be “listed” is to be on a “list,” and, according to dictionaries, a “list” is “a series
or number of connected names, words, or other items written or printed one after another.”
Id. (summarizing definitions of “list” from three dictionaries). T his definition, however,
does not help us answer the question here. The question here is where within the ordinance
an item must appear in order to be listed (or not) for purposes of subsection 7.C.15. Nothing
inherent in the word “listed” requires that it be read narrowly to apply only to the permitted
and conditional uses in section 7 or that it be read broadly to apply to all permitted and
conditional uses in the entire or dinance. Either interpretation is reasonable, so the
ordinance is ambiguous.

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We therefore turn to canons of construction. A zoning ordinance must be interpreted
in the manner that, while consistent with the ordinance’s terms, is least restrictive upon the
property owner’s rights to use its property as it wishes. See Frank’s Nursery Sales , 295
N.W.2d at 608-09. Here, interpre ting “not listed” to mean not l isted in section 7 is less
restrictive of property owners’ right to use their land as they wish.2 When interpreted in
this way, a property owner has a broader universe of potential conditional uses available to
it in the A-2 district.
In addition, a zoning ordinance must be considered in light of its underlying policy.
Id. at 609. As explained in the preface to the WCZO, the ordinance is “permissive rather
than restrictive.” While it permits uses that would naturally fit within an area and prohibits
incompatible uses, the ordinance also provides “added flexibility” through conditional-use
permits, making it “possible to allow certain uses to situate within a district” provided that
conditions are met. Interpreting the catchall provision of subsection 15 to apply to any use
not listed in section 7 provides more flexibility for potential u s e s i n t h e A - 2 m i x e d
agriculture-forestry district.
The Wentholds contend, however, that application of the catchal l provision to the
proposed shooting range is “problematic” because it gives the c ounty “unbridled

2 Though Frank’s Nursery Sales describes the principle as requiring construction of the
ordinance “strictly against the city,” that is a result of the particular facts of that case. 295
N.W.2d at 608. There, the city denied the property owner a buil ding permit; the property
owner and the zoning body were the opposing parties. Id. at 607. Here, the county granted
the conditional-use permit, and that grant is being challenged b y a t h i r d p a r t y . T h u s ,
construction of the ordinance i n favor of the landowner, here P RCD, comports with
Frank’s Nursery Sales.

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discretion,” resulting in arbitrary decision-making. To the extent the Wentholds challenge
the validity of the provision, we lack jurisdiction to consider their argument on a writ of
certiorari.3 However, one aspect of the argument is relevant to this appeal. The absence of
clear, objective standards for the grant or denial of a conditi onal-use permit makes the
county’s decision more “vulnerable to a finding of arbitrarines s.” RDNT, 861 N.W.2d at
76 (quotation omitted). However, the standards referred to in RDNT and Hay v. Township
of Grow , 206 N.W.2d 19 (Minn. 1973)—the case on which RDNT relies—were the
standards for granting a conditional-use permit, not the standards for determining what uses
were conditional uses. See RDNT, 861 N.W.2d at 76 (applying closer scrutiny to a city’s
factual findings because the den ial of the conditional-use perm it was based on a general
finding that the use would be “injurious to the surrounding neighborhood or otherwise harm
the public health, safety and welfare”); Hay, 206 N.W.2d at 22-23 (applying more scrutiny
where the standard for a special-use permit was that the use wo uld not “be detrimental to
the public welfare or injurious to property or improvements in the neighborhood”). Because

3 The subject-matter jurisdiction conferred by a writ of certiorari extends only to review of
local governments’ quasi-judicial acts and not to local governments’ legislative acts. Dead
Lake Ass’n v. Otter Tail County, 695 N.W.2d 129, 134-35 (Minn. 2005). Zoning ordinances
are such legislative acts. Id. at 135. Thus, this court lacks subject-matter jurisdiction to
consider a challenge to the validity of WCZO § 7.C.15 on the th eory it unlawfully grants
unbridled discretion to the county.

The Wentholds’ additional argument that section 7.C.15 is inval id because it exceeds the
county’s delegated authority—sp ecifically, that Minn. Stat. § 3 94.301 (2018) authorizes
counties to “designate certain types of developments” as condit ional uses and the uses
designated by the catchall are insufficiently “certain”—is similarly beyond our jurisdiction.
See id. at 134-35. Accordingly, we do not address this challenge to th e validity of the
ordinance.

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the standards contained in WCZ O § 21.D apply to all conditional uses, and because the
Wentholds do not argue that those standards are insufficiently particular, there is no need
to apply extra scrutiny to the county’s findings.
We conclude that the county did not act arbitrarily or capricio usly by applying
WCZO § 7.C.15 to permit a shooting range as a conditional use within the A-2 district.
II. The county did not act arbitrarily or capriciously by findi ng that adequate
measures were in place to control shot.

When reviewing a zoning decision, this court’s role is to determine whether there is
evidence in the record to support the zoning authority’s decisi on but not to re-weigh the
evidence. RDNT, 861 N.W.2d at 76. The Wentholds argue that the county acted arbitrarily
and capriciously by approving the conditional use even though PRCD’s plan for the range
did not comply with the NRA’s Range Source Book. The Range Source Book is identified
by Minnesota’s Shooting Range Protection Act, Minn. Stat. §§ 87A.01-.10 (2018), as the
basis of “best practices for shooting range performance standards” for purposes of that act.
Minn. Stat. § 87A.02.4
The Wentholds suggest that the county must deny a conditional-use permit for any
shooting range that does not com ply with the Shooting Range Pro tection Act’s best
practices. But a zoning authority does not necessarily act arbi trarily by granting a

4 The Shooting Range Protection Ac t, passed in 2005, Minn. Laws 2005 ch. 105, §§ 1-8,
at 589-93, provides some legal pro tections for ranges that comp ly with best practices.
Among other provisions, the act limits local government regulation of compliant shooting
ranges, grants immunity from nuisance suits to operators of compliant shooting ranges, and
limits the situations in which courts may grant permanent injun ctions against shooting
ranges. Minn. Stat. §§ 87A.03, .06, .07.

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conditional-use permit for a use that may violate a rule that t he zoning authority is not
responsible for enforcing. See Schwardt, 656 N.W.2d at 388-89 (holding that a county
board did not act arbitrarily by issuing a conditional-use perm it for a feedlot without
including as a condition a setback that was required for issuance of a feedlot permit). Here,
the county is not responsible for enforcing the standards set o ut in the Shooting Range
Protection Act. Thus, even if t he shooting range is not complia nt with the Range Source
Book, that fact alone does not require the county to deny the conditional-use permit.
The Wentholds argue that the Range Source Book and the plans that PRCD
submitted showing the layout of the property prove that shot is likely to land on adjoining
parcels. This fact, they argue, proves that the county acted ar bitrarily and capriciously by
finding, first, that the use would not harm already permitted uses of surrounding property,
and, second, that the use would not interfere with normal devel opment and improvement
of surrounding property. The Wentholds are correct that the PRCD’s plans do not meet the
standards of the Range Source Book . Using the Range Source Book ’s shotfall zone, 400
feet on the adjoining property to the east will be in that zone. The Wentholds contend that
the county’s failure to address this issue renders its decision arbitrary and capricious. See
In re Block, 727 N.W.2d 166, 178 (Minn. A pp. 2007) (quotation omitted) (holding that a
governing body’s decision is arb itrary and capricious where it “failed to consider an
important aspect of the problem”).
But the county addressed shotfall. Representatives of PRCD comm itted to taking
necessary precautions to keep sho t on the property. Also, the e vidence in the record does
not show that shot will in fact leave the property; it only sho ws that the shotfall zones as

13
determined by the Range Source Book extend beyond the propert y. But the county notes
that the zones shown in the Range Source Book do not illustrate shotfall zones based on
the rules that PRCD will use for shooting. It contends that PRC D’s rules, which require
that clays be thrown at a narro wer angle, will result in smaller shotfall zones. The county
could have credited the testimony of PRCD’s representatives about their style of shooting
and their willingness to prevent shot from leaving the property.
Moreover, even if shot would fall on adjoining land, the Wentho lds have failed to
prove that it was arbitrary or capricious for the county to con clude that the shotfall is not
inconsistent with the adjoining land’s current use or future de velopment. The county
concluded that the uses of the a djoining state forest—the only adjoining property onto
which the Range Source Book’s shotfall zones extend—will not be impacted by occasional
shotfall. The county relied primarily on an email from an employee of the DNR, the agency
that manages the state forest, agreeing to accommodate shotfall if it occurs.
The Wentholds argue that reliance on the statement from the DNR was unreasonable
for two reasons. The first is that it would be unreasonable for the DNR to permit “live
ammunition” to be shot onto public land. The second is that the position attributed to the
DNR by the county would expose th e DNR to federal environmental liability. As to the
first argument, the DNR already permits “target, trap, and recr eational shooting” on state
forest lands unless otherwise prohibited. Minn. R. 6100.0800, subp. 5 (2017). It is therefore
not unreasonable for the county to rely on a statement that the D N R w o u l d p e r m i t
recreational shotfall onto state forest land from other land. The second argument also fails.
As an initial matter, the Wentholds’ argument about federal environmental liability is based

14
on a case involving a suit against the operator of a gun club whose members fired shot into
its own land and into Long Island Sound; it did not involve a t hird party onto whose land
shot was discharged. Conn. Coastal Fishermen Asso c. v. Remington Arms Co. , 989 F.2d
1305, 1316 (2d Cir. 1993). However, even if the DNR’s policies expose it to environmental
liability, that fact does not make the shotfall inconsistent wi t h t h e c u r r e n t u s e o f t h a t
property. Thus, the finding that the conditional use will not negatively impact current uses
has support in the record and is not so overwhelmingly contradi cted “as to render the
approval arbitrary.” Schwardt, 656 N.W.2d at 389.
In sum, the county is not required to apply the provisions of Minn. Stat. §§ 87A.01-
.10 in deciding whether to grant the conditional-use permit in this case and reasonable
evidence supports the county’s decision that any off-property s hotfall would not be
incompatible with the adjoining s tate forest. The county did no t act arbitrarily or
capriciously by finding that the shooting range will not be injurious to the use or enjoyment
of other property in the immediate vicinity for the purposes already permitted.
III. The county did not act arbi trarily or capriciously in find ing that adequate
measures were or would be in place to control offensive noise.

The Wentholds’ final argument is that the county acted arbitrarily and capriciously
because its findings with respect to noise were not compliant with state law. Their argument
turns on whether Minn. Stat. § 87A.05 dictates the county’s own standards for what levels
of noise are offensive. They proceed on two fronts. First, they argue that the noise study’s
methodology is not compliant with M i n n . S t a t . § 8 7 A . 0 5 , w h i c h imposes specific
requirements for measuring noise for the purpose of that statute. Those requirements were

15
unquestionably not followed by the noise study. Second, they ar gue that the noise study
shows that noise levels at surro unding properties will be loude r than what is permitted
under the statute.
In support of their argument that section 87A.05 sets a limit on noise from a shooting
range that the county must follow in evaluating a conditional-u se permit, the Wentholds
point to the fact that the nois e model submitted by PRCD descri bed section 87A.05 as
setting the relevant noise limits. But an acoustic modeler’s assumption about the law does
not control this court. The Wentholds next point to Winczewski v. Becker Cty. Bd. of
Comm’rs, A16-2083, 2017 WL 3863845, at *4 (Minn. App. Sept. 5, 2017), to argue that a
conditional-use permit may not be granted if the noise standards of section 87A.05 are not
met. First, Winczewski is an unpublished case and therefore not precedential. See Minn.
Stat. § 480.08 (2018). Additionally, while Winczewski observes that, in that case, no
measurements were taken in conformity with the standards of sec tion 87A.05, it does not
hold that noise that exceeds the statute’s standards requires a county to deny a conditional-
use permit for a shooting range. Id. Winczewski does not persuade us that counties are
prohibited from granting a conditional-use permit to a shooting range that will produce
noise that is not compliant with Minn. Stat. § 87A.05. Thus, the fact that the shooting range
may produce such noise levels does not, by itself, require that the conditional use be denied.
See Schwardt, 656 N.W.2d at 388-89.
Another way that the noise stand ards of Minn. Stat. § 87A.05 co uld apply to the
conditional-use permit is through the county’s zoning ordinance. A conditional-use permit
requires a finding that there are or will be adequate measures to control offensive noise so

16
that the noise will not constitute a nuisance. WCZO § 21.D.5. B ut Chapter 87A does not
define noise in excess of the s tated levels to constitute a nuisance. And while compliance
with the provisions of Chapter 87A immunizes a shooting range operator from liability for
nuisance, Minn. Stat. § 87A.06, that provision does not define noncompliance to be a
nuisance per se. Thus, even if the study is methodologically inconsistent with Chapter 87A,
and even if it shows that the shooting range will produce noise exceeding the standards in
section 87A.05, those facts do not necessarily mean that the co unty acted arbitrarily or
capriciously by approving the conditional use.
Again, the standard of review is whether there was a reasonable factual basis in the
record to support the county’s decision. RDNT, 861 N.W.2d at 76. Although, as we have
explained, section 87A.05 does not dictate the standards that a county must follow, the
noise study did predict noise levels in some locations that would be within the standards in
section 87A.05, and the county could reasonably have determined that predicted levels that
would exceed those standards in other locations would not be of fensive or a nuisance. In
addition, the site visit provided evidence about the potential noise from the range, and the
county also imposed a condition that four rows of trees be plan ted around the property,
which would absorb noise. The county had a reasonable factual b asis for concluding that
there were or would be adequate m easures in place to control no ise from the proposed
conditional use and did not act arbitrarily and capriciously by approving it.
Affirmed.