Knife River Corporation-North Central, Appellant,

This opinion will be unpublished and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
A20-0449

Knife River Corporation-North Central,
Appellant,

vs.

Whited Township,
Respondent.

Filed December 28, 2020
Affirmed
Jesson, Judge

Kanabec County District Court
File No. 33-CV-19-182

Rob A. Stefonowicz, Bryan J. Huntington, Larkin Hoffm an Daly & Lindgren Ltd.,
Minneapolis, Minnesota (for appellant)

Jason J. Kuboushek, Iverson Reuvers Condon, Bloomington, Minnesota (for respondent)

Considered and decide d by Jesson, Presiding J udge; Larkin, Judge; and
Reilly, Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
Appellant Knife River Corporation app lied for a conditional use permit to mine
within respondent Whited Township’s limits. After the Township Board met to discuss
the permit and hear from the public, the Board denied the permit. Knife River argues that
the Board failed to follow adequate procedur es, resulting in the permit being approved as

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a matter of law. By notice of related appeal , the Township challenges the district court’s
determination that Knife River’s permit application was a “request,” triggering the 60-day
deadline under Minnesota Statute section 15. 99 (2018). Because the application was
subject to the 60-day rule, but the Board followed the proper statutory and local
requirements in processing and issuing a decision on the permit, we affirm.
FACTS
On October 22, 2018, Kn ife River Corporation–Nort h Central submitted a letter
requesting a conditional use permit to mine within Whited Townsh ip. The Township
received the letter, scheduled a public hearing, and published notice of the hearing. But in
the process, the Township misidentified the application for a conditional use permit as an
application for an “Interim Use Permit.”1
The Township Board conven ed on December 6, 2018, to discuss Knife River’s
“Interim Use Permit.”2 At the meeting, the Board heard from residents and a representative
from Knife River. Residents expressed severa l concerns about the proposed project,
including the hours of operation, truck a nd machinery traffic, noise produced by
machinery, environmental effects, and the im pact on home values. Some residents with
children living along the road were concerned by the potential safety hazard of additional
truck traffic. Residents also described their prior experiences with Knife River, explaining
that while working on an earlier project on th e same property, Knife River “tore up” the

1 The Township does not issue interim use permits, only conditional use permits.
2 The Board does not record its meetings, so we rely on the meeting minutes as a record of
what occurred.

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road and failed to repair it. When the Board invited Knife River’s representative to respond
to the residents’ concerns, he was unable to provide concrete information about the number
of trucks that would use the road, the environmental impact of the project, or the timeline
for restoration.
After listening to residents and Knife Rive r’s representative, the Board looked to
three sections of the Whited Township Zo ning Ordinance for further guidance on the
Township’s policies regarding conditional use permits. Sec tion 12, subdivi sion 1(E)(1)
directs the Board to consider potential adverse effects of a proposed project, including
whether the project will place excessive dema nds on existing public services or cause
traffic hazards and congestions. Whited Township, Minn., Zoning Ordinance (WZO) § 12,
subd. 1(E)(1) (1990). Section 12, subdivision 2(f) and (g) instructs the Board to evaluate
the project in terms of road use and main tenance. WZO § 12, subd. 2(f), (g) (1990).
Finally, section 9, subdivision 10 asks the Board to address whether the project would
constitute a nuisance to the pub lic health, safety, or welfare of the Township and its
residents. WZO § 9, subd. 10 (1990).
Upon considering the relevant sections of the zoning ordinance and after hearing
from residents and Knife River’s representativ e, all Board members voted to deny the
permit on December 6, 2018.
Three months later, Knife River dema nded the Township issue the requested
conditional use permit. According to Knife River, the Township was required to act on its
initial request within 60 days—b y December 21, 2018. Minn. Stat. § 15.99, subd. 2(a).
Knife River asserted that becau se the Board voted on an “Interim Use Permit,” it did not

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deliver a decision on the cond itional use permit within the 60 -day period. And if the
Board’s denial was timely, Knife River argue d, the denial was improper because it was
neither accompanied by a written explanation for denial nor prope rly submitted to the
planning commission before bein g considered by the Board. 3 These procedural failures,
Knife River contends, meant the applica tion was approved by operation of law on
December 21, 2018.
In response, the Township adopted Reso lution 562. The resolution detailed the
conclusions of law made by the Board in deny ing the request, stating that the project was
“not in harmony with the purp oses and intent” of the zoning ordinance. Knife River was
unsatisfied with this response and filed a complaint with the district court, requesting that
the court order the Township to issue the conditional use permit and declare that the denial
was arbitrary and capricious. Both parties filed motions for summary judgment.
The district court granted the Township ’s motion and denied Knife River’s motion
for summary judgment.
Both parties appeal.
D E C I S I O N
Knife River argues that the district cour t erred in granting th e Township’s motion
for summary judgment for three reasons. First, the Board failed to follow the statutory and
local procedural requirements for processi ng conditional use permit applications. Knife

3 The zoning ordinance requires permit reque sts to be sent to the Town Planning
Commission before being considered by the Board. WZO § 12, subd. 1. But in 1989, the
Township voted to combine the Town Planning Commission with the Township Board, so
the Board may act in both capacities when considering zoning requests.

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River asserts that it submitted a proper request under the statute, but the Board failed to
issue a valid decision on the application within 60 days. Second, even if the Board’s denial
was valid under the 60-day rule, the decision was arbitrary and capricious. Finally, Knife
River contends that its due-process rights were violated because the Board failed to follow
proper procedure. In its notice of related appeal, the Township challenges the district
court’s determination that Knife River’s ap plication was a request , triggering the 60-day
deadline under Minnesota Statute section 15.99.
We review the grant of summary judgment de novo. Montemayor v. Sebright
Prods., Inc., 898 N.W.2d 623, 628 (Min n. 2017). In conducting our review, we look to
whether any genuine issues of material fact exist and whether the district court erred in
applying the law. Id. When “reasonable persons might draw different conclusions from
the evidence presented,” there is a genuine issue of material fact. DLH, Inc. v. Russ ,
566 N.W.2d 60, 66 (Minn. 1997). We address each of the parties’ arguments in turn.
I. The Board followed proper procedure when it denied Knife River’s permit.
To determine whether the Board followed the proper procedural requirements we
look to Minnesota Statute section 15.99. Under the statute, the Board must either approve
or deny written requests relating to zoning within 60 days of receiving the request. Minn.
Stat. § 15.99, subd. 2(a). But as an initial matter, we must first address the Township’s
argument that Knife River’s application was not a “request” that triggered the 60-day rule.
Because we conclude Knife Ri ver did make a valid request within the meaning of the
statute, we then turn to whether the Board followed the procedural requirements of
section 15.99 and the zoning ordinance when it processed Knife River’s request.

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Knife River’s Request for a Conditional Use Permit
To properly submit a zo ning request, applicants must complete a written application.
Id., subd. 1(c). If a township has its own app lication form, the request must be submitted
on that form. Id. The Township has an official application form. WZO § 12, subd. 1(A).
Requests that are not in compliance with th ese requirements are not considered properly
made, and the 60-day rule does not apply.4 Id.
Here, it is undisputed that Knife River di d not complete the Township’s application
form. Instead, Knife River sent a letter that included “information for a Whited Township
Conditional Use Permit.” The letter provided details about the proposed use of the land,
the site plan, end use plan, and maps of the parcel. The Township argues that the request
was incomplete and the 60-day rule did not apply.
While we defer to local zoning authoritie s’ decisions on conditional use permits, on
appeal we will not consider issues that were not raised at the December Board meeting.
Big Lake Ass’n v. St. Louis County, 761 N.W.2d 487, 491 (Minn. 2009) (“To allow parties
to litigate an issue on review that was not ra ised before the local zoning authority would
encroach on the county’s broad authority in making quasi-judicial decisions.”). The issue
does not need to be raised formally, but “there must be sufficient specificity to provide fair
notice of the nature of the ch allenge” so that concerned parties have an opportunity to
address the issue. Id.

4 The 60-day period will restart only if the local zoning authority sends the applicant written
notice of the deficiencies within 15 days of receiving the request. Minn. Stat. § 15.99,
subd. 3(a).

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Here, the Board gave no notice that it considered Knife River’s application
incomplete until after it had issued its deni al. The issue was not “fairly raised for
consideration” at the December meeting, so Knife River did not have the opportunity to
address whether its application was properly completed. Id. Thus, by accepting Knife
River’s application and failing to notify Knife River of deficiencies within 15 days, the
Township waived its argument that the request was incomplete.5 See also N. States Power
Co. v. City of Mendota Heights, 646 N.W.2d 919, 925 (Minn. App. 2002) (stating that the
agency, not the applicant, has the burden to act within the statutor y deadline when it has
received and is processing a request).
In sum, the Township waived its argumen t that the request was incomplete when it
failed to notify Knife River of deficiencies in its application within 15 days of receiving
the request. Accordingly, the 60-day rule applied.
Procedural Requirements of the 60-day Rule
When the Township receiv ed Knife River’s permit request on October 22, 2018, it
had 60 days to deliver its decision. Minn. St at. § 15.99, subd. 2(a). Knife River argues
that because the Township violated the procedural requir ements of section 15.99 when it
issued a decision on an interim use permit— as opposed to a conditional use permit—its
request was approved as a matter of law on December 21, 2018.

5 We further note that although the Board “may reject as inco mplete” requests not
submitted on the Township’s official form, it may only do so if the request “does not
include information required by the agency.” Minn. Stat. § 15.99, subd. 1(c). Knife River’s
application included all of the information re quired by the zoning ordinance. WZO § 9,
subd. 4(A) (1990). And if the Board believed the request was incomplete, it had 15 days
to notify Knife River of its deficiencies. Minn. Stat. § 15.99, subd. 3(a). It did not do so.

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Our review of the record reflects that th e Board’s denial was valid. When the Board
denied Knife River’s request, voting against the permit, it made a decision within the
60-day period. The minutes s how that, despite misidentif ying the request, the Board
considered the request as one for a conditional use permit. While discussing the request,
the Board only referred to sect ions of the zoning ordinance related to conditional use
permits. In fact, the zoning ordinance does not recognize interim use permits, only
conditional use permits.
Furthermore, Knife River knew of the misi dentification of their application, both
before and during the meeti ng, and did not correct the mi stake. If it had raised the
nomenclature issue the Board could have corre cted the mistake. Because Knife River
neglected to do so, the argument was waived. Big Lake Ass’n, 761 N.W.2d at 491–92. As
a result, the Board’s denial of the interim use permit request on December 6, 2018, was a
valid, timely denial of Knife River’s conditional use permit request.
To attempt to persuade us otherwise, Kn ife River asserts that the Board failed to
follow appropriate procedures by not i ssuing written reasons for its denial. 6 Minn.
Stat. § 15.99, subd. 2(a). But the written-reasons requirement in the governing statute is
distinct from the default permit-approval clause. Johnson v. Cook County ,

6 Knife River asserted at oral argument that the Board’s failure to issue findings of fact at
the December meeting violated the zoning ordi nance. But this argument was not
adequately briefed by Knife River. Schoepke v. Alexander Smith & Sons Carpet Co. ,
187 N.W.2d 133, 135 (Minn. 1971) (“An assignment of error based on mere assertion and
not supported by any argument or authorities . . . will not be considered on appeal.”). Even
if it had been properly raised, the meeting minutes act as the Board’s “findings of fact” and
meet the procedural requirements of the zoning ordinance.

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786 N.W.2d 291, 295-96 (Minn. 2010) (“[T]he time deadline requirem ent in the second
sentence and the written-reasons requirement in the third sentence of subdivision 2 are
separate requirements.”). Unlike th e 60-day provision, the Board is directed to issue the
reasons for its decision, but not required to do so. Id. at 296. And the failure to issue
written reasons does not result in the automatic approval of the permit request.7 Id.
In sum, there are no genuine issues of mate rial fact and no indication that the district
court misapplied the law in addressing the Township’s argument about the validity of Knife
River’s application. We conclude that th e Township waived its argument that Knife
River’s request was invalid. As such, the 60-day rule applied and the Board had until
December 21, 2018, to issue a decision. Because the Board issued a timely denial, the
permit was not approved as a matter of law.
II. The Board’s decision was not arbitrary or capricious.
While the Board’s decision was procedural ly proper, we next turn to address the
substantive decision itself. Knife River assert s that the Board’s denial of its request was
arbitrary and capricious. While the Board was not required to issue written reasons for its
decision, “when a zoning authority fails to reco rd legally sufficient reasons for the denial
of a zoning request that are factually suppo rted in the record, a prima facie case of
arbitrariness is established.” Id. To determine whether the Board’s denial was arbitrary
and capricious, we review the meeting minutes for evidence that the Board’s decision was

7 For purposes of section 15.9 9, we need not reach the issu e of whether the minutes are
sufficient or whether Resolution 562 is adequate because of the directory language of the
statute.

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supported by the record. C.R. Invs., Inc. v. Vill. of Shoreview, 304 N.W.2d 320, 325 (Minn.
1981). And in reviewing the record we consider the information available to the Board at
the December 6, 2018 meeting. Big Lake Ass’n, 761 N.W.2d at 491. At that meeting, the
Board had before it the concerns raised by residents, information provided by Knife River’s
representative, and Knife River’s written request . Thus, our review is confined to the
information available in those sources.
Turning first to the residents, the minut es reflect that they expressed numerous
concerns about the project, including the potential noise, increased truck traffic, damage to
the existing road, and impact on home values . Residents also pr ovided insight on their
previous experiences with Knife River when the company worked on a different project on
the same land. According to residents, Knife River “tore up” the access road, and—despite
promising to do so—failed to restore the road once the project was complete. These
concrete examples of residents’ previous experience with Knife River and their first-hand
knowledge of the area are an appropriate basi s for the Board’s denial. They are far from
“vague reservations” about the project generally. Compare C.R. Invs., 304 N.W.2d at 325
(explaining that the council could not support its denial with the “vague reservations” of
residents and commission members), with RDNT, LLC v. City of Bloomington ,
861 N.W.2d 71, 77 (Minn. 2015) (finding that residents’ experience with ongoing
construction was “concrete” enough to suppor t the city’s denial of a conditional use
permit).
Nor did Knife River’s representative or the permit application itself provide
information that suggested the residents’ conc erns were unfounded. In its application,

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Knife River did not provide specific information about what residents could expect in terms
of noise, dust, environmental impacts, traffi c, and efforts to mitigate negative impacts on
property values. And Knife River’s repres entative could not answer questions at the
hearing about the number of trucks that would be using the road, for example.
After hearing from residents and Knife Ri ver’s representative, the Board then tied
these concerns to sections of the zoning ordinance regarding conditional use permits. First,
the Board identified the project’s demand on public services, the need for proper screening
to reduce negative impacts on adjacent land values, the overall needs of the town, existing
land uses, and traffic hazards or congestion as having potential adverse effects. WZO § 12,
subd. 1(E)(1). The Board also considered whether the project would cause a nuisance with
regard to traffic or require excessive improvements or maintenance. Id., subd. 2(f). Having
heard from Knife River’s representative that the company would not pave the roads, but
would “treat it for dust,” the Board noted that the ordinance required all project-related
roads to be surfaced to control dust. Id., subd. 2(g). Finally, the meeting minutes reflect
that the Board highlighted the project’s potential to create noise, vibration, and smoke that
could qualify as being a nuisance. WZO § 9, subd. 10.
When considered as a whole, the record supports the Board’s findings that the
project could negatively impact the Township a nd its residents. The parties did not raise
genuine issues of material fact over what was discussed at the meeting. Nor did the district
court misapply the law when it considered the Board’s actions in denying the permit. As
such, the Board’s decision was not arbitrary and capricious.

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III. Knife River’s due-process rights were not violated.
The purpose of procedural due process is to ensure that the parties have notice of
the claims made against them and a “meani ngful opportunity to present their case.”
Sweet v. Comm’r of Human Servs. , 702 N.W.2d 314, 320 (Min n. App. 2005) (quotations
omitted). Knife River assert s its due-process rights were violated when the Board
incorrectly identified the request as an interim use permit a nd failed to have the request
considered by a planning commission before going to the Board for a final decision.
The record does not support Knife River’s argument. Knife River was given proper
notice and the opportunity to make its case before the Board at the December meeting. At
least two notices were published indicati ng when and where the Board would be
considering Knife River’s request. The meeti ng was open to the p ublic, and Knife River
sent a representative there to speak on its be half. Although the Bo ard named the request
incorrectly, it properly review ed the request as a conditional use permit. Moreover, the
misidentification did not fundamentally change Knife Ri ver’s ability or opportunity to
defend its position to the Board.8 Therefore, the Board did not violate Knife River’s due-
process rights.
In sum, there are no genuine issues of mate rial fact and no indication that the district
court misapplied the law in its review of the parties’ motions for summary judgment. Based
on our review of the record, we conclude that Knife River submitted a valid request for a

8 Nor do we believe that the Board was re quired to send the request to a planning
commission first. The Township approved a decision to combine the Town Planning
Commission with the Town ship Board in 1989, and as su ch could act in both capacities
when it denied the permit.

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conditional use permit and the Township timel y issued a decision when it denied the
request within 60 days of receiving the request. The record supports the Board’s decision
to deny the request, and the decision was neith er arbitrary nor capricious. In making its
decision, the Board met the procedural requir ements of Minnesota Statute section 15.99
and the Whited Township Zoning Ordinance and did not violate Knife River’s due-process
rights.
Affirmed.