In the Matter of the Application of United States Solar Corporation and USS Water Fowl Solar LLC for a Conditional Use Permit.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1043

In the Matter of the Application of United States Solar Corporation
and USS Water Fowl Solar LLC for a Conditional Use Permit.

Filed July 12, 2021
Reversed and remanded
Slieter, Judge

McLeod County Board of Commissioners
CUP No. 19-23

Timothy M. Kelley, James A. Schoeberl, Stinson LLP, Minneapolis, Minnesota (for
relators United States Solar Corporation and USS Water Fowl Solar LLC)

Michael K. Junge, McLeod County Attorney, Glencoe, Minnesota (for respondent County
of McLeod)

Considered and decided by Reilly, Pres iding Judge; Slieter, Judge; and Bryan,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
In this certiorari appeal from respondent-county’s denial of relators’ application for
a conditional use permit (CUP), relators argue that the decision must be reversed because
it was arbitrary or capricious. The county board identified two reasons for denial of
relators’ application to build so lar panels on property leased within the county. The first
reason, “concern for the preservation and protection of land values” is not supported by the
record and does not address wh ether “the conditional use will . . . substantially diminish

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and impair property values within the immediate vicinity” and is, therefore, both factually
and legally insufficient. The second reason, that the “property is considered prime
agricultural soil,” is not a condition listed in the county zoning ordinance that must be
satisfied to approve a CUP, a nd is, therefore, legally insuffi cient. Because both reasons
are insufficient to deny the permit, the decision to deny the application was arbitrary or
capricious and we reverse and remand for approval of the application.
FACTS
In December 2019, relators United States Solar Corporation and USS Water Fowl
Solar LLC (relators) applied to respondent McLeod Coun ty (McLeod County, or the
county) to build a “.5-MW photovoltaic solar energy system,” also referred to in the CUP
application as a “solar garden,” on ten acres of leased farmland in the county.
The application twice came before the county planning commission, which both
times recommended to the county board its approval of the ap plication. The planning
commission recommended approval subject to conditions summarized as follows:
providing a bond, insurance, landscaping, fenc ing, and other repairs; obtaining necessary
permits; testing stray voltage; and restoring the site to its original and natural state after the
solar panels are no longer in use.
Pursuant to a 3-2 vote, the county board denied the application though three of the
five county board members commented that the application met the requirements of the
city’s zoning ordinance for granting a CUP:
 “I’m kind of torn on this issue. You know, my township and
my constituents are asking me to vote against it. I don’t see
that this project violates any of the restrictions/conditions that

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we’ve placed on any of the othe r projects . . . I think it’s a
worthy project”;

 “[Relators have] been willing to do everything we’ve asked of
them. My problem is I’m not sure that we can regulate how
someone should use their property as long as they’re within the
guidelines provided . . . [The CUP is] within the guidelines”;
and

 “[The CUP] met all the criteria of the way our—our regulations
or policies are written today.”

The county board mailed relators a one-page letter stating, with no additional explanation,
its two reasons for denial as: (1) “Concern for the preservation a nd protection of land
values,” and (2) “The property is considered prime agricultural soil.”
This certiorari appeal follows.
DECISION
Relators argue the decision was arbitrary or capricious because the two reasons the
county provided for denial were legally insufficient and factually unsupported by the
record. “[Appellate courts] will reverse a governing body’s decision regarding a
conditional use permit application if the governing body acted unreasonably, arbitrarily, or
capriciously.” RDNT, LLC v. City of Bloomington, 861 N.W.2d 71, 75 (Minn. 2015). “An
agency decision is arbitrary and capricious if it is an exercise of the agency’s will, rather
than its judgment . . . .” CUP Foods v. Cty. of Minneapolis, 633 N.W.2d 557, 565 (Minn.
App. 2001), review denied (Minn. Nov. 13, 2001 ). On appeal from denial of a CUP, the
applicant bears the burden of showing “that the reasons for the denial either are legally
insufficient or had no factua l basis in the record.” Yang v. Cty. of Carver , 660 N.W.2d
828, 832 (Minn. App. 2003). A board’s denial of a CUP is subject to a less deferential

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standard of review than CUP approvals. Schwardt v. Cty. of Watonwan, 656 N.W.2d 383,
389 n.4 (Minn. 2003). Our review of this record indicates th at the county board’s denial
of relator’s CUP application was arbitrary or capricious.
First, the record does not support the co unty board’s finding of “[c]oncern for the
preservation and protection of land values.” The zoning or dinance which controls the
“Approval, Disapproval or Modification” of conditional uses states that “[n]o conditional
use shall be recommended by the County Planning Commission unless said Commission
shall find,” among other conditions that the parties agree were satisfied, that “the
conditional use will not be injurious to the use and enjoyment of other property in the
immediate vicinity for the pur poses already permitted, nor substantially diminish and
impair property values within the immediate vicinity.” McLeod County, Minn., Zoning
Ordinance § 17, subd. 6 (2020) (emphasis added).
The record establishes that the county board was pr esented with information
suggesting the project would not negatively im pact property values. This information
included two studies submitted by re lators describing the impact that solar panels had on
neighboring property values: (1) a study fro m Chisago County concluding there is “no
adverse impact” on neighboring property sale price; (2) a study from Kirkland Appraisals,
LLC, finding “no indication of any impact on the property values, positive or negative, of
[adjacent properties].” The county board was presented with statements from the McLeod
County director of environmental services that “[a]ll available data on the public record
and, otherwise, finds no negative impacts to property values of residential homes or

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agricultural land adjacent [to] or near a solar array” and that “there is no adverse impact
between a solar project and a property in regards to resale at this time.”
The county board received the following statements from neighboring landowners
in opposition to the application, with only one statement referencing the impact the project
might have on land values:
 The project should be placed on “grounds of lesser value” than
the leased property;

 Concern over a “reduction in th e fair market value of the
property surrounding the proposed . . . solar panels”;

 That “all the neighbors don’t want” the solar panels present at
the proposed location; and

 That “common sense” dictates th at “most people do not want
to buy a house that has to look at a field of solar panels day in
and day out.”

The statements from neighbors were not buttressed by expert opinion or other
“concrete information.” There was no evidence presented, nor did the county find, that
that the project would “substantially diminish and impair property values” as described by
the zoning ordinance. While neighborhood opposition may be considered in application
decisions, the opinions of neighbors must be “based on concrete in formation” such as
personal observations, or support from experts, neither of which exist here. SuperAmerica
Group, Inc., v. Cty. of Little Canada, 539 N.W.2d 264, 267-68 (Minn. App. 1995), review
denied (Minn. Jan. 5, 1996). The board’s findi ng of generalized “[c]oncern for property
values” does not rise to the level of “substan tially diminish and impair property values in
immediate vicinity” and therefore is not a le gally sufficient basis for denial. For these

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reasons, there is an insufficien t basis in the record to deny the CUP out of “[c]oncern for
the preservation and protection of land values.”
Second, that the “property is considered prime agricultural soil” is not a condition
listed in the ordinance for the board’s consider ation related to the CUP application. This
reason is, therefore, legally insufficient and to deny relator’s CUP application on this basis
is arbitrary or capricious. “A denial would be arbitrary . . . if it was established that all of
the standards specified by the ordinance as a condition to granting the permit have been
met.” Zylka v. Cty. of Crystal, 167 N.W.2d 45, 49 (Minn. 1969) (footnote omitted). When
reviewing decisions for denying the permit, the reviewing court may reverse the decision
if the reasons “are legally insufficient” or if the decision is “without factual basis.” Nw.
Coll. v. Cty. of Arden Hills, 281 N.W.2d 865, 868 (Minn. 1979).
The county argues that preservation of “prime agricultural soil” is a legally
sufficient basis for denial, pointing to th e general-purpose langua ge of section 7,
subdivision 1, of the county zoning ordinanc e which states that the “purpose of [an]
Agricultural District is to preserve for farming those locations that have soils which, when
properly managed, are capable of high crop yields . . . .” We are not persuaded.
First, section 7 is not th e provision in the county’s zoning ordinance which
establishes the criteria the county must consider involving a CUP application. Second, this
language from section 7 is not referenced in section 17 of th e zoning ordinance, which is
the section that governs CUP a pplications. Finally, there is no reference in section 17 to
the general-purpose statement of section 7 which might incorporate it as a basis to consider
a CUP. This compels our conclusion that preservation of “prime agricultural soil” is not a

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legally sufficient basis for denial of a CUP, as “[t]he rules that govern the construction of
statutes are applicable to the cons truction of [county] ordinances.” Smith v. Barry ,
17 N.W.2d 324, 327 (Minn. 1944).
Even if it were proper to consider preservation of “prime agricultural soil” as a basis
for denial, this reason is not supported by the record. The landowner who leased the
property to relators for the project told the county board that the proposed project site is a
“small knob” of land off the main tillable pa rcel of property and w ith a “gas regulator”
nearby which creates “big problems” when farming and that the leased land is “not exactly
prime for farming.” Thus, the county board’s finding that the application should be denied
because the “property is considered prime agricultural soil” is not supported by the record.
We therefore reject the county’s argumen t that the leased property being “prime
agricultural soil” is a legally sufficient reason to deny the CUP. Because this reason for
denial is also without factual basis, th e county’s decision must be reversed. Nw. Coll.,
281 N.W.2d at 868.
In sum, because each of the two reasons given by the county board are insufficient
to support a denial of the application, and because the record shows the application satisfies
all the standards of the county zoning ordina nce, we reverse and remand with instruction
to the county board to approve the CUP application subject to reasonable conditions.
Reversed and remanded.