In the Matter of the Application of Tillman Infrastructure LLC, Norman Westerlund, and Laurie Westerlund 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This opinion will be unpublished and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
A19-1824

In the Matter of the Application of Tillman Infrastructure LLC,
Norman Westerlund, and Laurie Westerlund
for a Conditional Use Permit.

Filed August 3, 2020
Reversed
Connolly, Judge

Aitkin County Planning Commission
File No. 2019-005021

Erik F. Hansen, Elizabeth M. Cadem, Kirk A. Tisher, Burns & Hansen, P.A., Minneapolis,
Minnesota (for relator SBA Towers VII, LLC)

Paul D. Reuvers, Jason J. Kuboush ek, Andrew A. Wolf, Iverson Reuv ers Condon,
Bloomington, Minnesota (for respondent county)

Jason A. Lien, Cyri A. Van Hecke, Clayton J. Carlson, Maslon LLP, Minneapolis,
Minnesota (for respondent Tillman Infrastructure, LLC)

Norman Westerlund, Laurie Westerlund, Aitkin, Minnesota (pro se respondents)

Considered and decided by Connolly, Presiding Judge; Segal, Chief Judge; and
Kirk, Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn.
Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
In this certiorari appeal, relator challenges a decision of respondent Aitkin County
Planning Commission (the planning commission) granting a conditional-use permit (CUP)
to construct a telecommunications tower. Because the planning commission ’s decision
was arbitrary and capricious by failing to consider or apply section 7(B )(4) of the Aitkin
County Tower Ordinance (the tower ordinance), we reverse.
FACTS
In August 2019, a CUP application was filed with the planning commission on
behalf of respondent Tillman Infrastructure, LLC (Tillman) for approval to construct a 260-
foot telecommunications tower (the Tillman tower) on respondents Norman and Laurie
Westerlund’s property. The Westerlunds own real property near 310th Avenue in Aitkin
County zoned for far m-residential use. Relator SBA Towers VII, LLC owns another
telecommunications tower (the SBA tower) located a half-mile from the proposed location
for the Tillman tower.
Once the CUP application was received , Aitkin County staff reviewed it. After
review, the county scheduled a hearing on the application at the planning commission’ s
September 16, 2019 meeting. But the planning commission failed to secure a quorum at
this meeting , and so it rescheduled the h earing to October 21 after obtain ing the
Westerlunds’ agreement to extend the statutorily mandated 60-day decision deadline.
During the CUP application process, Verizon Wireless (Verizon) sent two letters to
the planning commission expressing its support for the Tillman tower . In the first letter,

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Verizon explained that it was a current tenant on the SBA tower, but wanted to relocate its
equipment to the Tillman tower for economic reasons. As justification for this proposed
switch, Verizon explained that relator’s monthly fe es were between 30% and 40% higher
than Tillman’s monthly rates . In the second letter, a Verizon engineer requested that the
proposed tower have an antenna height of 250 feet above ground.
At the October 21 planning commission hearing, Tillman’s representative asked the
planning commission to approve the CUP, citing Verizon’s first letter to assert that it was
not economically feasible for Verizon to remain on the SBA tower. A representative
appeared for relator at this hearing and opposed granting the CUP. This representative also
expressed relator’s willingness to negotiate rates with Verizon.
After hearing these comments and discussing the matter, the three planning
commission members unanimously approved the CUP application. The planning
commission’s approval required that the CU P “comply with all local, state and federal
regulations” and “be painted red and white with [a] slow pulsing red light at night.”
This certiorari appeal follows.
D E C I S I O N
Minnesota law authorizes counties to carry out planning and zoning activities to
promote the health, safety, morals, and general welfare of the community. Minn. Stat.
§ 394.21, subd. 1 (2018). A CUP is a zoning tool that 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).

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A county board’s ruling on a CUP application constitutes a quasi -judicial decision,
reviewable through writ of certiorari. Interstate Power Co. v. Nobles Cty. Bd. of Comm’rs,
617 N.W.2d 566, 574 & n.5 ( Minn. 2000). When an appellate court reviews a quasi -
judicial decision, separation of powers principles impose a deferential standard of review.
Big Lake Ass’n v. St. Louis Ct y. Planning Comm’n , 761 N.W.2d 487, 491 ( Minn. 2009).
And when, as here, we review a zoning authority’s grant of a CUP, we apply a more
deferential standard of review. Id.; see also Schwardt v. County of Watonwan, 656 N.W.2d
383, 389 n.4 ( Minn. 2003) (no ting that the supreme court has usually applied a more
deferential standard of review to CUP approvals). Yet we do not give boundless deference
to county zoning authorities. Instead, we will reverse a governing body’s decision if it
acted unreasonably or arbitrarily and capriciously when considering a CUP application.
RDNT, LLC v. City of Bloomington , 861 N.W.2d 71, 75 ( Minn. 2015); cf. Builders Ass’n
of Twin Cities v. Minn. Dep’t of Labor & Indus., 872 N.W.2d 263, 270 (Minn. App. 2015)
(declaring agency’s r ule invalid under the arbitrary -and-capricious standard when the
record contained “no reasoned determination of how [the agency] arrived at the [exception
to the rule]”), review denied (Minn. Dec. 29, 2015).
“For a challenge to a CUP to succeed, there must be a showing that the proposal did
not meet one of the standards set out in the [o] rdinance and that the grant of the CUP was
an abuse of discretion.” In re Block , 727 N.W.2d 166, 177 -78 (Minn. App. 2007)
(quotation omitted). To make this determination, appellate courts first consider whether
the zoning authority provided legally sufficient reasons to support its decision. RDNT,
LLC, 861 N.W.2d at 75-76. Courts use statutory -interpretation principles when

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interpreting zoning ordinances. Eagle Lake of Becker Cty. Lake Ass’n v. Becker Cty. Bd.
of Comm’rs, 738 N.W.2d 788, 792 (Minn. App. 2007).
The parties dispute the planning commission’s application of the tower ordinance,
which aims to protect Aitkin County’s “unique and diverse landscapes” by establishing
standards for the design and location of tower facilities. Aitkin County , Minn., Tower
Ordinance § 1 (2002). These standards seek to “[e]ncourage the use of existing towers and
buildings to accommodate commercial wireless tel ecommunication service antennas in
order to minimize the number of towers needed to serve the county.” Id. § 1(D). And the
tower ordinance contains additional factors beyond those in the Aitkin County Zoning
Ordinance that the planning commission “shall consider” when evaluating a CUP
application. Id. § 13(a)-(j) (2002).
Section 7, titled “Co -Location Requirements,” 1 lists five mandatory requirements
for tower facilities located or constructed in Aitkin County. Id. § 7(A)-(E) (2002).2 This
section requires “[d]ocumentation that the communications equipment planned for the
proposed tower cannot be accommodated on an existing or approved tower or building
within the search ring of the service area due to one or more o f the following reasons[.]”
Id. § 7(B). Before the planning commission, Tillman relied on the following language to
assert that it had satisfied this requirement: “Other unforeseen reasons that make it

1 The tower ordinance defines “co -location” as “[t]he placement of wireless
telecommunication antenna by two or more service providers on a tower, building or
structure.” Aitkin County, Minn., Tower Ordinance § 3 (2002).
2 Section 7 applies to the Tillman tower because its proposed location is within two miles
of the SBA tower.

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infeasible to locate the planned telecommunications equipment upon an existing or
approved tower or building.” Id. § 7(B)(4).3
Here, the record includes a checklist listing the planning commission’s findings and
a transcript of the planning commission’s hearing on the CUP application. But the record
contains no finding that the CUP application has satisfied the tower ordinance’s co-location
requirement. The planning commission argues that becau se it checked a box stating that
“[the] other applicable requirements of this ordinance, or other ordinances of the County
have been met,” it implicitly decided that the requirements of se ction 7(B)(4) were met.
We reject this argument.
The planning commission never specifically referenced the tower ordinance during
the hearing, let alone indicated what subsection of section 7(B ) allowed approval of the
Tillman tower. Nor did it discuss why it believed the higher rates and fees constituted an
“unforeseen reason” that made co-location on the SBA tower “infeasible.” At one point, a
member of the planning commission stated:
So if – if some rare – you know, they come to some condition,
then maybe the [Tillman] tower wouldn’t be built, but if – and
if there ain’t, then maybe they’ll go ahead and build, you know.
I mean, I have no idea what the rates are, if they’re $5 or 5,000
a month.

(Emphasis added.)
This reflects that the planning commission did not e ven know what the rental rates
were, let alone determine that they were unforeseen rendering co -location infeasible.

3 No other reason is applicable.

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Therefore, the planning commi ssion acted in an arbitrary and capricious manner when it
granted the CUP.
In urging a different result, respondents cite the supreme court’s decision in
Schwardt, which affirmed a zoning authority’s use of a checklist as “a sufficient expression
of the board’s conclusion that the conditions for approval have been met.” 656 N.W.2d at
389. But Schwardt does not hold that the use of a checklist will always compel a conclusion
that the zoning authority has not acted unreasonably or arbitrarily and capriciously. Here,
the planning commission never found that the CUP satisfied section 7(B)(4), a prerequisite
for proposed tower facilities in Aitkin County that have another tower within their search
ring, and we cannot make this finding for the planning commission. See Wright Elec., Inc.
v. Ouellette, 686 N.W.2d 313, 324 (Minn. App. 2004) (stating that “this court cannot serve
as the fact-finder” (citing Kucera v. Kucera, 146 N.W.2d 181, 183 (Minn. 1966))), review
denied (Minn. Dec. 14, 2004).
Reversed.