In the Matter of the Application of Uniti Towers LLC 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This opinion will be unpublished and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
A18-1853

In the Matter of the Application of Uniti Towers LLC for a Conditional Use Permit.

Filed July 22, 2019
Affirmed
Ross, Judge

Freeborn County Board of Commissioners
Resolution 18-18-247

Jonathan D. Wolf , Nicholas R. Delaney, Adam A. Ripple, Rinke Noonan, St. Cloud,
Minnesota (for relator American Towers LLC)

David J. Walker, Freeborn County Attorney, Albert Lea, Minnesota (for respondent
Freeborn County Board of Commissioners)

Steve Gaskins, Daniel Brees, Gaskins Bennett & Birrell, LLP, Minneapolis, Minnesota (for
respondent Uniti Towers LLC)

Considered and decide d by Connolly, Presiding Judge; Ross , Judge; and Stauber,
Judge.*
U N P U B L I S H E D O P I N I O N
ROSS, Judge
Uniti Towers LLC applied for and received from Freeborn County a conditional use
permit to build a cellular telephone tower. American Towers LLC argues on appeal that
the county’s board of commissioners did not explain its reasons for approving the permit,

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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failed to support its decision with required factual findings, and failed to consider whether
the tower will be unnecessary and duplicative. Because the decision was based on a
sufficient factual basis and because the planning commission is not required to find whether
the tower is duplicative, we affirm.
FACTS
In August 2018 Uniti Towers LLC applied to Freeborn County for a conditional use
permit to construct a wireless-communication tower outside of Glenville. Zoning
Administrator Trevor Bordelon submitted a report to the Freeborn County Planning
Commission assessing the application. His report included five findings of fact regarding
the tower’s impact on the surrounding area and recommended approving the permit.
The planning commission held a hearing on the application. American Towers LLC,
which operates a wireless tower of its own nearby, objected. It argued among other things
that an additional tower is unnecessary because America n Towers’ tower stands close to
the proposed tower site and that the tower would harm nearby property and the community.
The planning commission voted to recommend approving the conditional use permit and
submitted a report to that effect to the Freeborn County Board of Commissioners. The
planning commission’s report included its recommendation, Bordelon’s report, and Uniti
Towers’ plans for the tower.
The board of commissioners voted to approve the permit. American Towers appeals
by writ of certiorari.
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D E C I S I O N
American Towers argues that the board of commissioners erred in three ways: by
not explaining its reasoning sufficiently to allow for judicial review, by failing to make
findings required for a conditional use permit, and by failing to consider the impact of an
unnecessary and duplicative tower on the surrounding area. The argument fails. We give
great deference to a county’s decision to approve a conditional use permit. Schwardt v.
County of Watonwan , 656 N.W.2d 383, 386, 389 n.4 (Minn. 2003). We will reverse a
conditional use permit approval “if the governing body acted unreasonably, arbitrarily, or
capriciously.” RDNT, LLC v. City of Bloomington, 861 N.W.2d 71, 75 (Minn. 2015).
American Towers fails to justify reversing under this deferential standard.
As a threshold matter, Freeborn County argues unconvincingly that American
Towers lacked standing to challenge Uniti Towers’ petition. Although it raised the issue
for the first time at oral argument on appeal, we will address it; standing is a jurisdictional
requirement that may be challenged at any time. State by McClure v. Sports & Health Club,
Inc., 370 N.W.2d 844, 850 (Minn. 1985). We evaluate questions of standing de novo. In re
Custody of D.T.R., 796 N.W.2d 509, 512 (Minn. 2011).
American Towers has standing. Standing exists when a party has an injury -in-fact
that is causally connected to the complained-of conduct and can be redressed by a decision
in the party’s favor. Id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61,
112 S. Ct. 2130, 2136 (1992)). Amer ican Towers possesses property near the site of the
proposed new tower. Although its claim that nearby property will suffer harm because of
operation of a new wireless tower seems dubious in light of its own operation of a wireless
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tower in the vicinity, if a new tower can result in an injury in fact to nearby property—yes,
even to property possessed by American Towers—a decision in favor of American Towers
would redress the injury. On the thin record before us concern ing any harm to nearby
property, we can say for now that American Towers has standing. We turn to the merits.
We reject American Towers’ argument that the board’s failure to support its
decision with reasons and findings in the record renders its decision arbitrary and
capricious. In Freeborn County, the task of making factual findings supporting approval or
denial of a conditional use permit is delegated to the Freeborn County Planning
Commission. Freeborn County, Minn., Ordinances § 42-613 (2017). The planning
commission also decides whether to recommend approval of a conditional use permit, and
that recommendation, along with the planning commission’s findings, are sent to the board
of county commissioners, which then votes to approve or deny the permit. Id. It is the
planning commission’s job to make the required factual findings, not the board’s.
And the planning commission’s findings are sufficient. Before a conditional use
permit may be granted in Freeborn County, the planning commission must make five
findings:
(1) That the conditional or interim use will not be injurious to
the use and enjoyment of other property in the immediate
vicinity for the purposes already permitted and not
substantially diminish and impair property values within the
immediate vicinity.
(2) That the establishment of the conditional or interim use will
not impede the normal and orderly development and
improvement of surrounding vacant property for uses
predominant to the area.
(3) That adequate utilities, access roads, drainage and other
necessary facilities have been or are being provided.
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(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 offensive odor, fumes, dust, noise and
vibration, so that none of these will constitute a nuisance, and
to control lighted signs and other lights in such a manner that
no disturbance to neighboring properties will result.

Freeborn County, Minn., Ordinances § 42-614 (2017). The Bordelon report included all
five required findings. The planning commission received it and made its recommendation
based on the report’s findings, which were then expressly incorporated into the
commission’s report to the board. The board received the commission’s report before
voting whether to approve the permit. The findings satisfy the ordinance.
American Towers asserts that the county board could not delegate its duty to make
factual findings, citing our recent decision, Perschbacher v. Freeborn County Board of
Commissioners, 883 N.W.2d 637, 639–45 (Minn. App. 2016). American Towers reads too
much into the Perschbacher decision. In that case, the board had decided against the
recommendation of the planning commission, denying the appellant’s permit to build a
swine barn. Id. at 639–40. We observed that every decision regarding a conditional use
permit must be supported by reasons in the record. Id. at 643 (citing Morey v. Sch. Bd. of
Indep. Sch. Dist. No. 492, Austin Pub. Sch., 136 N.W.2d 105, 108 (Minn. 1965)). Because
the board decided against the recommendation and findings of the planning commission,
the commission’s findings could not support the decision and the board therefore needed
to provide its own rationale for denying the permit. Id. at 641–46. We concluded that the
board had indeed plac ed its reasoning in the record, and we held that its decision was
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therefore not arbitrary and capricious. Id. at 643–46. Here the board approved Uniti
Towers’ conditional use permit following the recommendation and findings of the planning
commission. No additional findings were necessary to justify the approval.
We reject American Towers’ argument that county boards must make independent
findings in every conditional use permit decision because the cases it cites for the
proposition do not support it. In Bartheld v. County of Koochiching, 716 N.W.2d 406,
411–13 (Minn. App. 2006), and in Picha v. County of McLeod, 634 N.W.2d 739, 742–43
(Minn. App. 2001), we reversed a board’s decision denying a conditional use permit. In
Bartheld, the board had not adequately explained its reasons for denying a permit after
receiving a recommendation from the zoning commission, and the application met all
required conditions. 716 N.W.2d at 411–13. In Picha, the planning commission forwarded
the permit application without a recommendation or findings and the county’s minutes did
not demonstrate that the county had considered the necessary factors. 634 N.W.2d at
742–43. It is true that the supreme court in Earthburners, Inc. v. County of Carlton did
require a county board to specify reasons for its decision, but there the permit applicant
made concessions to accommodate the planning commission’s concerns, the board
chairperson stated that proper consideration of the application would be too time
consuming, and the board summarily adopted the planning commission’s recommendation
to deny the permit. 513 N.W.2d 460, 461–62 (Minn. 1994). The planning commission here
recommended approval, Uniti Towers included no additional information in its application
after that approval, and the county board approved the permit. The ordinance does not
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obligate the board to make its own findings, and this is not a situation where additional
findings or rationale were necessary to explain the decision.
American Towers argues that the board’s decision was arbitrary and capricious
because it did not evaluate the impact of an unnecessary and duplicative tower on the area.
American Towers cites no authority that would have required the commission to consider
whether a permit approves a duplicative use.
Affirmed.