A21-0106

This opinion is nonprecedential except as provided by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
A21-0062
A21-0106

In the Matter of the Application of Nokomis Energy LLC and South Garden LLC for a
Conditional Use Permit (A21-0062),

and

In the Matter of the Application of Nokomis Energy LLC and Crane Garden LLC for a
Conditional Use Permit (A21-0106).

Filed December 20, 2021
Reversed and remanded
Ross, Judge

McLeod County Board of Commissioners
CUP Application 20-20

Matthew Melewski, The Boutique Firm PLC, Minneapolis, Minnesota (for relators)

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

Considered and decided by Gaïtas, Presiding Judge; Ross, Judge; and Reilly, Judge.
NONPRECEDENTIAL OPINION
ROSS, Judge
Two subsidiary companies of Nokomis Energy LLC unsuccessfully applied for
conditional-use permits to build solar gardens in McLeod County. Answering Nokomis
Energy’s argument on appeal that the county’s denials were arbitrary and capricious, we
hold that the county’s previous adverse judgment based on this court’s rejecting its
farmland-preservation rationale for denying a different CUP collaterally estops the county
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from denying the applications here on that same premise. We also hold that the county
improperly ignored Nokomis Energy’s proposed conditions aimed at allaying any concerns
about stray voltage. We therefore reverse and remand.
FACTS
South Garden LLC and Crane Garden LLC, subsidiaries of Nokomis Energy LLC,
each applied for a conditional-use permit (CUP) to build a separate, one-megawatt
solar-energy production facility in McLeod County. The McLeod County Planning
Advisory Commission and the McLeod County Board of Commissioners considered the
applications at public hearings.
Two neighboring landowners expressed fears about stray voltage. They claimed that
the number of fetal deaths among their livestock increased after other solar gardens had
been constructed nearby. Nokomis Energy did not deny that solar gardens can generate
stray voltage, but it proposed conditions that would alleviate the concern that their
operation would do so. Nokomis Energy promised to hire only licensed professionals and
agreed to allow third-party oversight during construction. It suggested conducting
stray-voltage testing before and after construction. And it indicated that it would accept
conditions discussed by county officials during the hearings, stating that “the stray voltage
considerations noted here would be absolutely something we’d be willing to accept as a
condition of the permit.” The planning commission and the board of commissioners did
not adopt the proposed conditions.
The county denied both applications. It denied the South Garden application on the
sole ground that the proposed site is prime farmland. It denied the Crane Garden application
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because the proposed site is prime farmland and because of the concerns that stray voltage
from the operation would negatively affect livestock. Nokomis Energy appeal s by
certiorari from the county’s decisions. We resolve the consolidated appeals.
DECISION
Nokomis Energy asks us to reverse the county’s decision denying the South Garden
and Crane Garden CUP applications. We review a county’s CUP-application decision to
determine whether it was arbitrary and capricious. Schwardt v. County of Watonwan,
656 N.W.2d 383, 386 (Minn. 2003). Counties have considerable discretion when deciding
CUP applications, calling for a deferential standard of review. Id. at 386. If a decision rests
sufficiently on the law and has a factual basis in the record, it is not arbitrary or capricious.
RDNT, LLC v. City of Bloomington , 861 N.W.2d 71, 75–76 (Minn. 2015). For the
following reasons, we conclude that the county’s application denials were arbitrary and
capricious.
Nokomis Energy argues that the county should have been collaterally estopped from
denying the CUP applications to preserve prime farmland because we recently held that
the county could not rely on that legally infirm basis to deny a CUP application for a
different solar garden. See In re Application of U.S. Solar Corp., No. A20-1043, 2021 WL
2909044, at *3 (Minn. App. July 12, 2021); Minn. R. Civ. App. P. 136.01, subd. 1(c)
(establishing that nonprecedential opinions are binding authority for collateral estoppel).
Collateral estoppel prevents a party from relitigating an issue when four elements are met:
(1) the issue was identical to one in a prior adjudication; (2) there was a final judgment on
the merits in the prior adjudication; (3) the estopped party was a party or in privity with a
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party to the prior adjudication; and (4) the estopped party was given a full and fair
opportunity to be heard on the adjudicated issue. Ellis v. Minneapolis Comm’n on Civ. Rts.,
319 N.W.2d 702, 704 (Minn. 1982). All four elements of collateral estoppel are present
here. The issue was identical in the prior adjudication. See U.S. Solar, 2021 WL 2909044,
at *2–3. The decision in that case is a final judgment, McLeod County was a party, and the
county had a full and fair opportunity to be heard on the same legal issue. Id. The county
on appeal has offered no reason why its farmland-preservation rationale escapes
collateral estoppel. We hold that the county is estopped from asserting the
prime-farmland-preservation rationale as a basis for denying the CUP applications.
Nokomis Energy also contends the county’s concerns about stray voltage are not
supported by the testimony of the neighboring landowners. Neighborhood opposition can
justify denying a CUP application when the opposition rests on “concrete information”
rather than generalized concerns. Yang v. County of Carver, 660 N.W.2d 828, 833– 34
(Minn. App. 2003). The parties argue over whether the testimony was adequately
supported, but we need not resolve that dispute. Even when circumstances would otherwise
support denying a CUP application, denying the application is arbitrary if the applicant
established that a reasonable condition is available to eliminate the basis for denial. RDNT,
861 N.W.2d at 78. And a governing body acts arbitrarily if it simply ignores the applicant’s
proposed conditions. C.R. Invs., Inc. v. Village of Shoreview, 304 N.W.2d 320, 325 (Minn.
1981). The record reveals that the county ignored Nokomis Energy’s proposed conditions.
In deciding to recommend denial, the planning commission did not consider whether the
proposed conditions would eliminate the stated concerns. The board of commissioners also
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failed to address the proposed conditions when it denied the application. The letter
outlining the county’s decision on the CUP applications did not attempt to explain why the
proposed conditions were insufficient. On appeal, the county offers no rationale for
ignoring the proposals. We hold that, even assuming the concerns about stray voltage have
a factual basis in the record, the county’s decision to deny the application without regard
to the prophylactic conditions offered to allay them was arbitrary.
We reverse and remand for the county to approve both CUP applications subject to
reasonable conditions.
Reversed and remanded.