In the Matter of Application Number 2020-006782, 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This opinion is nonprecedential except as provided by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
A21-0383

In the Matter of Application Number 2020-006782,
Conditional Use Permit.

Filed January 31, 2022
Affirmed; motion denied
Smith, John, Judge*

Aitkin County Planning Commission
File No. 2020-006782

Steven Anderson, Anderson Law Group, PLLC, St. Paul, Minnesota (for relators Brian
Zimmerman, Erica Zimmerman, Zimmerman Holding LLP, Craig Schultz, and Sandee
Schultz)

Jay T. Squires, Nathan S. Froemming, Rupp, Anderson, Squires & Waldspurger, P.A.,
Minneapolis, Minnesota (for respondent s Aitkin County and Aitkin County Planning
Commission)

Erik F. Hansen, Elizabeth M. Cadem, Burns & Hansen, P.A., Minneapolis, Minnesota (for
respondent Norsemen Motorcycle Club, Inc.)

Considered and decided by Ross, Presiding Judge; Segal , Chief Judge; and Smith,
John, Judge.

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

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NONPRECEDENTIAL OPINION
SMITH, JOHN, Judge
We affirm respondent county planning commission’s decision to grant respondent
motorcycle club’s conditional use permit (CUP) for an “outdoor and off-highway
recreation area” because the relators forfeited classification claims by not raising them
before the planning commission and the decision of the planning commission was not
arbitrary or capricious.
FACTS
Relators Brian Zimmerman, Erica Zimmerman, Zimmerman Holding LLP, Sandee
Schultz, and Craig Schultz (collectively “the neighbors”) own property in rural Wagner
Township in Aitkin County (the county). Brian Zimmerman, who passed away during the
pendency of this appeal, grew up on the Zimmerman property and was a military veteran
who suffered from post-traumatic stress disorder (PTSD) and valued the land for its quiet
and solitude. The Schultz’s also moved to their property to enjoy its solitude and outdoor
recreation opportunities. A 180-acre parcel of land—the subject o f the dispute in this
case—separates the Zimmerman and Schultz properties.
Prior to 2019, the land between the Zimmerman and Schultz properties was used for
logging. However, respondent Norsemen Motorcycle Club, Inc. (the Norsemen) purchased
the land from the logging company in 2019. The Norsemen are a group of “passionate
outdoor enthusiasts, promoting responsible motorcycle and other non- motorcycle
recreation in Minnesota.” They purchased the land so that club members could use it for
outdoor recreation—most notably single-track motorcycle riding, but also hiking and other
3
activities. The Norsemen state that they do not intend to host races or “motocross” events
on the land, and instead plan to use it as a place for members to simply enjoy nature and
ride motorcycles.
The Norsemen did not immediately apply for a CUP for their motorcycle riding.
Beginning in August 2019, the neighbors observed motorcycle riding and heavy equipment
use occurring on the property. On September 27, after multiple complaints to the county
sheriff, the neighbors’ attorney sent a letter to the county zoning director alleging “unlawful
land use.” In the letter, the neighbors argued that the Norsemen’s motorcycle riding was a
conditional use requiring a CUP. They further argued that the county must complete an
Environmental Assessment Worksheet (EAW) before approving any such permit. 1 On
November 5, the neighbors sent a second letter to the county attorney, alleging additional
violations and urging enforcement action. The next day, the county sent the Norsemen a

1 The Minnesota Environmental Policy Act (MEPA), Minn. Stat. §§ 116D.01-.11 (2020),
requires responsible governmental units (RGUs) to analyze the “significant environmental
effects” of their major actions (such as granting certain permits). Minn. Stat. § 116D.04,
subd. 2a(a). An EAW is the first step in the MEPA review process. It is “a brief document
which is designed to set out the basic facts necessary to determine” whether additional
environmental review is required. Id., subd. 1a(c). In practice, that means a form in
question-and-answer format that a project proposer (here, the Norsemen) typically
provides responses for. If the EAW process shows that a project has the “potential for
significant environmental effects,” the RGU must complete a more detailed environmental
impact statement (EIS). Id., subd. 2a(a). Otherwise, the RGU may issue a “negative
declaration,” meaning that no significant effects are anticipated, and no further review is
required. Id., subd. 2b(2). Under Minn. R. 4410.4300, subp. 37(D) (2019), an EAW is
required for “an off-highway vehicle recreation area of 80 or more acres, on agricultural
land or forested or other naturally vegetated land.”

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cease-and-desist order. The order stated that the Norsemen must obtain a CUP for a
“motorcycle race track” in order to resume riding motorcycles on their land.
After the cease-and-desist order but before applying for a CUP, the Norsemen began
the environmental review process. In July 2020, the county completed an EAW for the
proposed recreation area based on the Norsemen’s submissions. The EAW describes the
site as primarily wooded, with some wetland areas and tree clearings. The EAW explains
that the Norsemen propose to use the site to ride motorcycles, as well as for hiking, hunting,
camping, and other outdoor activities. According to the EAW, these activities would be
for the Norsemen’s members only, would not include events or “motocross” activities, and
would be “sporadic, intermittent, and ephemeral.” The EAW further explains that
construction would be limited to clearing and grading existing logging trails, and that the
Norsemen would not ride in wetlands. It also notes that the Norsemen sought to rectify
stormwater issues originating from the prior logging of the property, following Minnesota
Pollution Control Agency (MPCA) recommendations.
A key issue in the EAW—and the primary subject of this appeal— was noise. The
EAW describes a sound test that the Norsemen conducted in January 2020, “when sound
travels greater distances due to lack of leaf cover.” The Norsemen measured the sound
from two motorcycles at 0, 50, 500, 3,200, and 6,600 feet from the source. They found
noise levels of 104.9, 85, 65, 64.6/61.4, and <60 decibels (dB), respectively. The EAW
compared these results with typical noise levels from roadway construction equipment and
concluded that “the proposed site use will have a reduced noise volume when compared to
the previous logging use.” The EAW also noted that the Norsemen require members to
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comply with muffler specifications and that they “regularly conduct[] sound level
monitoring of their motorcycles.”2
The county received 18 written comments on the EAW during a 30-day public
comment period. A representative of the MPCA commented regarding the EAW’s
discussion of water resources and noise.3 Regarding noise, the MPCA stated:
Based on the information provided in the EAW, including the
number of expected users at any time, member-only access, no
events, and the strict muffler requirements of the motorcycle
club, it is not expected that the described use of this site would
cause any issues with the state noise standards. If concerns
arise after the motorcycle club begins actively using the site,
those concerned may contact the MPCA.

However, several community members —including the neighbors—submitted fifteen
comments questioning the EAW’s description of environmental impacts and noise levels.
The neighbors and other community members generally questioned the methodology of
the Norsemen’s sound test and remarked on the quiet and peaceful nature of the area. In
particular, the neighbors submitted a report from an engineer, Dr. David Braslau,
4
critiquing the noise section of the EAW. Dr. Braslau opined that the Norsemen’s “response
to [the noise section] of the EAW lacks the relevant analysis and criteria required to provide

2 Minnesota has regulatory noise and muffler standards for off-highway motorcycles.
Minn. R. 6102.0040, subp. 4 (20 19). It also has general outdoor noise standards. Minn.
R. 7030.0040 (2019); see also Minn. Stat. 116.07, subd. 2(c) (2020).

3 The county also received comments on the EAW from the Department of Natural
Resources (DNR) and the Army Corps of Engineers.

4 Dr. Braslau has a Ph.D in engineering and an M.Sc. in civil engineering and is the
president of a firm, David Braslau Associates, Inc., that “address[es] environmental noise,
acoustics, and vibration problems.”
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meaningful information regarding the noise impact on adjacent residential properties.” He
stated that a proper noise study should measure background noise levels, identify nearby
sensitive receptors, use modeling to evaluate conformance with state noise standards, and
identify measures to mitigate the impacts of noise. Because of these and other alleged
shortcomings, the neighbors requested that the county complete an EIS for the Norsemen’s
project.
On October 6, 2020, the county issued its findings of fact, conclusions, and order
regarding the need for an EIS. The county provided detailed responses to each of the
comments it received. In these responses, the county agreed with the MPCA that based on
the Norsemen’s response to the EAW form, “it is not expected that noise from the use of
the site as the club intends will create noise levels that exceed the state minimum
standards.” However, the county did note in response to the neighbors that “[i]t will be the
recommendation that an independent party conduct a noise study as part of a CUP
application, if one is applied for.” The county also stated that, while “some people may
consider the noise produced by single track [off-highway motorcycles] ‘annoying’, . . . [the
Norsemen do not] believe that anticipated noise levels will constitute a ‘nuisance’ under
state law.” And it noted that the MPCA and Aitkin County would enforce state noise
standards at the site as needed. Based on the EAW and comments received, the county
concluded that “[t]he identified environmental effects of the project are minor and /or
temporary,” and that therefore no further environmental review of the Norsemen’s proposal
was required. The neighbors did not appeal the county’s decision not to require further
environmental review.
7
Following the county’s decision, the Norsemen engaged an acoustic engineer, Alex
Bub of OHV Acoustics LLC, to conduct an additional noise study. 5 Mr. Bub performed
his study on October 17 with a Wagner Township supervisor present. He measured
background noise with no vehicles running at three of the Norsemen’s property boundaries
as well as at a fourth site “a few miles away.” He also measured noise at each of those four
test sites from off-highway vehicle use on the property. And he measured t he stationary
sound of ten vehicles and an ATV at a distance of 20 inches from each vehicle. Mr. Bub
measured the background noise at the test sites at 40.3-44.4 A-weighted decibels (dBA)
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L10 and 40.4-42.2 dBA L50. 7 He found that the use of the vehicles was quieter than
Minnesota’s outdoor noise standards at all four test sites (46.9-58.6 dBA L10 and 41.8-
49.1 dBA L50). See Minn. R. 7030.0040 (setting outdoor noise standards). And at 20
inches, he measured each of the el even vehicles tested at between 83.4 and 95.8 dBA,

5 The neighbors allege “possible bias” by Mr. Bub, citing a public comment by Craig
Schultz. According to the neighbors, Mr. Bub “is an owner and trainer at Wisconsin Off
Road Adventures and has been a strong advocate of allowing off-road access.” Mr. Bub
did not provide any information about his own background or qualifications.

6 The unit here, dBA, differs from the unit used in the EAW, dB. While the record does
not fully clarify the difference, Dr. Braslau gave the following explanation in his
memorandum addressing the EAW: “specifying a sound level in ‘decibels’ is incomplete.
The state noise standard contains reference to A-weighted decibels.” Unlike the EAW,
both Mr. Bub and Dr. Braslau used dBA in their writing and analysis.

7 Per the MPCA’s regulations, L10 “means the sound level, expressed in dB(A), which is
exceeded ten percent of the time for a one-hour survey, as measured by test procedures
approved by the commissioner.” Minn. R. 7030.0020, subp. 7 (2019). Similarly, L50
“means the sound level, expressed in dB(A), which is exceeded 50 percent of the time for
a one-hour survey, as measured by test procedures approved by the commissioner.” Id.,
subp. 8 (2019).

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below Minnesota’s vehicle sound limits. See Minn. R. 6102.0040, subp. 4(B)
(incorporating “SAE J1287” standards for off-highway vehicle noise). Based on these
measurements, Mr. Bub opined that “[t]he Norsemen property passed all required
Minnesota State regulatory noise levels.”
The neighbors also engaged their own expert to obtain further measurements. On
October 24, Dr. Braslau traveled to the Schultz property and conducted additional noise
testing. While Dr. Braslau was not able to measure the noise from the Norsemen’s
motorcycles, he did measure background noise at two locations near the Schultz residence.
Dr. Braslau measured significantly lower background noise than Mr. Bub and concluded
that “the ambient background level without snow cover, is probably less than 25 dBA.”
8
Dr. Braslau also wrote a memorandum responding to Mr. Bub’s study. He suggested that
his lower noise measurements meant that Mr. Bub’s study was “conducted under unusually
noisy background conditions.”9 He also noted that Mr. Bub did not explain “the locations
or tracks of the vehicles during the test, whether the vehicles were dispersed or grouped
together, or whether the vehicles were operated under relaxed or competitive conditions.”
Therefore, Dr. Braslau opined that Mr. Bub’s test results “do not withstand questions

8 The significance of a lower background noise level would be in the difference between
the background noise and increased noise. According to Dr. Braslau, “[i]ncreases of over
15 dBA above background are considered ‘serious impacts.’”

9 In a public comment to the county, the neighbors alleged that Mr. Bub’s test was
“conducted under questionable circumstances.” These “questionable circumstances”
allegedly include “dump trucks continuously driving back and forth on the road adjacent
to their properties, . . . at least one stationary pick-up truck continuously revving engines
while testing was occurring,” and the fact that no one from the county attended the test.
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related to the reliability, confidence, or verification of the test results and therefore do not
support the claim of compliance with state noise standards.”
On November 30, 2020, the Norsemen submitted a CUP application to respondent
Aitkin County Planning Commission (the commission) for the proposed outdoor recreation
area. The application stated that the use of the land would be “to allow [the Norsemen’s]
limited members in good standing to use their [l]and for private, outdoor recreation,”
including “single-track riding of motorcycles.” The application also stated that “use of the
[l]and will be limited to daylight hours during spring, summer, and fall only.” The
Norsemen included a link to Mr. Bub’s noise study as part of their application.
The commission scheduled a meeting to consider the Norsemen’s application for
January 25, 2021. In advance of the meeting, the commission received dozens of
comments related to the Norsemen’s application, including a petition with more than 200
signatures in opposition. Several members of the club, as well as one of the club’s former
neighbors, wrote in favor of the application. Numerous community members, including
both part-time and full-time residents, expressed concerns over the impact the Norsemen’s
riding could have on noise levels, property values, and the local environment. The
neighbors submitted lengthy comments both individually and through counsel, also
discussing noise, property values, and the potential impact of the noise on Brian
Zimmerman’s PTSD condition. The neighbors submitted Dr. Braslau’s background noise
measurements and critique of the Norsemen’s noise study as part of these comments.
At the January 25 meeting, county staff explained the Norsemen’s application, the
EAW, and twelve proposed conditions that could accompany a CUP. County staff also
10
read most of the written comments into the record. The Norsemen’s counsel and some of
their members then presented their proposal to the commission; and as part of that
presentation the commission asked the Norsemen questions about the application and Mr.
Bub’s sound study. The commission then heard public comments for and against the
Norsemen’s proposal; again, both the commission and county staff asked questions of some
of the commenters. Because of the volume of information submitted, the commission
asked if the Norsemen would agree to an extension of the commission’s decision so that
the commission could consider all the comments. The Norsemen agreed, and the
commission scheduled a second meeting on the application for February 22, with final
comments by the Norsemen and the neighbors due in advance.
Between the meetings, the commission gathered more information about the project.
In particular, one commissioner reached out to the MPCA for its perspective on Mr. Bub’s
noise study. An MPCA staff member responded: “I don’t see anything that changes the
MPCA noise comments on the EAW. It sounds like the County has the information it
needs going into the [CUP] hearing.” In response to a follow-up question, the MPCA staff
member stated, “I didn’t have any concerns about the study.” The same commissioner also
contacted the county assessor’s office for more information about certain property values.
In particular, the commissioner asked about the impact of a different ATV riding area on
neighboring property values. The county assessor responded: “[w]e haven’t put any
reduction on values in that area due to noise or other factors related to the ATV area. I
have not heard of taxpayers requesting a value reduction due to this either.” Finally, the
neighbors and the Norsemen submitted their final comments on the application, which
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included their positions on the proposed conditions. The neighbors offered to facilitate a
site visit. The Norsemen’s comments included a statement from Mr. Bub responding to
Dr. Braslau’s noise study critiques,10 and a letter from a residential appraiser opining that
“I believe a statement that assumes a property has declined because of a noise issue is
nothing more than [a] personal unsupported opinion.”
The commission discussed the application at length at their February 22 meeting.
Four commissioners noted that they had personally visited the site, and the commission
chair stated that she had not but had “reviewed the property on the County’s GIS map.”
The chair described the additional information received related to the noise study and
property values. The commission discussed changes to the proposed conditions on the
CUP. Finally, the commission walked through each of the seven findings required by the
county zoning ordinance (the ordinance) to grant a CUP. See Aitkin County, Minn.,
Zoning Ordinance § 11.03 (2019) (requiring the commission to make certain findings
before granting a CUP). Each commissioner shared their views on each of the seven
findings, discussing the comments and evidence in the record. Ultimately, the commission
voted 3-1 to approve the Norsemen’s CUP application, subject to ten conditions.
The commission made the following seven findings as required by section 11.03 of
the ordinance:

10 Mr. Bub refuted the neighbors’ allegations of “questionable circumstances,” noted that
the neighbors were invited to attend the October 17 noise test but declined, critiqued Dr.
Braslau’s background noise analysis, and stated that Dr. Braslau’s report was “informative
but has no merit to the question [of the Norsemen’s compliance with Minnesota noise
standards].”
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1. The proposed use will not be injurious to the use and
enjoyment of the environment or of other property in the
immediate vicinity, nor impair property values within the
surrounding neighborhood. [4 votes yes, 1 vote no] . . .
2. The proposed use will not increase local or state
expenditures in relation to costs of servicing or maintaining
neighboring properties. [5 Yes] . . .
3. The location and character of the proposed use are
considered to be consistent with a desirable pattern of
development for the locality in general. [4 Yes, 1 No] . . .
4. The proposed use conforms to the comprehensive land use
for the County. [5 Yes] . . .
5. Proper notice has been given to those people required under
Minnesota Statutes, Chapter 394, of the proposed use and of
the hearing before the Planning Commission. [Yes] . . .
6. That other applicable requirements of this ordinance, or
other ordinances of the County have been met. [5 Yes] . . .
7. The proposed use is not injurious to the public health, safety
and general welfare. [4 Yes, 1 No] . . .

See Id. The county also imposed the following ten conditions on the Norsemen, as allowed
by section 11.04 of the ordinance, which were modified from the original twelve conditions
proposed by county staff:
1. Must comply with all local, state and federal regulations that
pertain to this type of operation.
2. The use of this property under the terms of this conditional
use permit (CUP) is limited to Norseman Motorcycle Club
members only.
3. All off-highway vehicles must meet the requirements of
Minnesota Rules 6102.0040, subp. 4.
4. A 25 foot non-mowed/cut/trimmed vegetated buffer remain
between any wetland and trails and 50 feet between any springs
and trails, excluding any trails that presently exist.
5. A 100 foot non-mowed/cut/trimmed vegetated buffer remain
between the trails and property lines, excluding any trails that
presently exist.
6. No off-highway vehicle sanctioned competitive events are
allowed.
7. No operation during October 25
th thru November 25th.
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8. Hours of operation are during the daylight hours 8:00 a.m.
to 8:00 p.m. or sunset, whichever occurs first.
9. The number of camping sites must comply with the Aitkin
County Zoning Ordinance and with the MHP and Recreational
Camping Areas Ordinance.
10. No new trails are allowed to be created.

See Aitkin County, Minn., Zoning Ordinance § 11.04 (2019) (allowing the commission to
impose conditions on a CUP). In accordance with these findings and subject to these ten
conditions, the county issued the Norsemen a CUP. The CUP allows the Norsemen to
“utilize the project area for an outdoor and off-highway recreation area, in an area zoned
open, with 10 conditions.” The neighbors now appeal the commission’s decision.
DECISION
In general, a county zoning authority may grant a CUP “upon a showing by an
applicant that standards and criteria stated in the [county zoning] ordinance will be
satisfied.” Minn. Stat. § 394.301, subd. 1 (2020).
11 A zoning authority’s decision to grant
or deny a CUP is a quasi-judicial act reviewable by writ of certiorari. Interstate Power Co.
v. Nobles Cnty. Bd. of Comm’rs, 617 N.W.2d 566, 574 (Minn. 2000). “[C]ounties have
wide latitude in making decisions about [CUPs].” Schwardt v. Cn ty. of Watonwan, 656
N.W.2d 383, 386 (Minn. 2003). This court reviews the record independently, but reviews
county decisions under a deferential standard, looking at “whether the county acted

11 The neighbors’ brief cites to similar language in Minn. Stat. § 462.3595, subd. 1 (2020)
regarding when a “governing body” may grant a CUP. However, that statute applies to
municipal governments, not county governments, and therefore does not apply in this
appeal. See Minn. Stat. § 462.352, subd. 11 (2020) (“‘Governing body’ in the case of cities
means the council by whatever name known, and in the case of a town, means the town
board.”).

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unreasonably, arbitrarily, or capriciously.” Id.; see also RDNT, LLC v. City of
Bloomington, 861 N.W.2d 71, 75 (Minn. 2015). 12 This deference is heightened when the
zoning authority approves, rather than denies, a CUP. Big Lake Ass’n v. Saint Louis Cnty.
Plan. Comm’n, 761 N.W.2d 487, 491 (Minn. 2009). To determine whether the
commission’s decision was unreasonable, arbitrary, or capricious, this court examines
(1) “the reasons given by the [county] were legally sufficient” and (2) whether “the reasons
had a factual basis in the record.” RDNT, 861 N.W.2d at 75-76.
Here, the neighbors argue that the county erred by granting a CUP for an “outdoor
and off-highway recreation area” when that use is not one of the uses listed in Appendix A
of the ordinance. And they argue that the commission’s decision was arbitrary and
capricious because it failed to properly consider the Norsemen’s prior behavior on the
property, the proposal’s noise impacts, public opposition to the application, and Brian
Zimmerman’s PTSD condition. We address each argument below.
I. The neighbors forfeited their challenge to the commission’s decision to grant a
CUP for a use not specified in the ordinance.

The neighbors first argue that the commission erred by granting a CUP for an
“outdoor and off-highway recreation area,” when such use is not listed in Appendix A of

12 The neighbors’ brief cites standards of review from the Minnesota Administrative
Procedure Act (MAPA), Minn. Stat. § 14.69 (2020), as well as caselaw interpreting that
statute. Those standards, however, only apply to “agency” decisions. Id. Under MAPA,
an “agency” is “any state officer, board, commission, bureau, division, department, or
tribunal, other than a judicial branch court and the Tax Court, having a statewide
jurisdiction and authorized by law to make rules or to adjudicate contested cases.” Minn.
Stat. § 14.02, subd. 2 (2020). MAPA therefore does not apply to the county zoning decision
in this appeal.

15
the ordinance. Appendix A consists of a table listing numerous potential land uses (e.g.,
“Amusement Park,” “Animal Hospital,” or “Antique Sales”). Aitkin County, Minn.,
Zoning Ordinance Appendix A (2019). For each listed use, the table identifies whether
that use is (a) “permitted,” (b) “not permitted,” or (c) requires a CUP in a given zoning
district.13 Id. The Appendix states that “[f]or uses not included on this list, application
shall be made to the Board of Adjustment for interpretation.” Id. An “outdoor and off-
highway recreation area” is not one of the uses listed in Appendix A. Therefore, the
neighbors argue, the commission erred by granting a CUP without obtaining an
interpretation from the board of adjustment. The commission and the Norsemen respond
that the neighbors forfeited this argument by not raising it previously before the
commission.
14 We agree that this issue was not properly raised, and therefore decline to
interpret what Appendix A of the ordinance requires.
In general, this court does not address issues on appeal that were not raised before
a county zoning authority. Big Lake, 761 N.W.2d at 490-91; see also Graham v. Itasca
Cnty. Plan. Comm’n, 601 N.W.2d 461, 468 (Minn. App. 1999). “To allow parties to
litigate an issue on certiorari review that was not raised before the local zoning authority
would encroach on the county’s broad authority in making quasi-judicial decisions.” Big
Lake, 761 N.W.2d at 491. However, “the question of whether a zoning or land use planning

13 The property at issue here is zoned “Open.”

14 Respondents use the term “waiver” in their briefs. But “[while] forfeiture is the failure
to make the timely assertion of a right, waiver is the intentional relinquishment or
abandonment of a known right.” State v. Beaulieu, 859 N.W.2d 275, 278 (Minn. 2015)
(quotation omitted). It appears that respondents’ arguments relate more to forfeiture.
16
issue was properly raised is not always easily determined.” Id. The issue need not be
“framed in precise legal terms,” but the zoning authority must have “fair notice of the
nature of the challenge” so that it may address the issue. Id. In Big Lake, for example, a
lake association challenged a CUP, arguing that the application should have been
considered “as a residential, rather than commercial, planned unit development.” Id. at
489. The supreme court held that this issue was not fairly raised before the zoning
authority. It noted that “[t]he notice of public hearing clearly stated that [the commission]
was considering a proposal for ‘a commercial planned unit development.’” Id. at 491. And
it determined that public comments expressing “doubts about the true intentions of the
resort owners” or “generalized complaints regarding the density of the proposal” did not
give the commission fair notice of an argument that the development should be considered
residential. Id. at 492.
In this case, the neighbors assert that they “told [the commission] that a [CUP] was
required,” and “should not be further required to remind [the commission] of the
application process.” They also argue that while Big Lake involved an alleged analytical
error within the proper process, the issue here was one of “required procedure.” We are
not persuaded. Much like in Big Lake, while the neighbors made generalized complaints
about the Norsemen’s proposal, they never raised a need for the board of adjustment to
interpret the proposed use. The Norsemen’s CUP application, which was submitted on a
county form, did not specify a use from the table in Appendix A and instead referred
generally to “private, outdoor recreation” and “single-track riding of motorcycles.” In
December 2020, the county issued a public notice of its upcoming meeting regarding the
17
Norsemen’s application for a CUP , which described the use as “an outdoor and off-
highway recreation area, in an area zoned Open.” The neighbors did not question this
description of the proposed use or call for board of adjustment interpretation in their public
comments, nor was the classification issue raised at either commission hearing. The
commission used identical language in its permit issued February 22.
Based on these facts, we conclude that the neighbors have forfeited their
classification argument. While the neighbors could not have known how the use would be
“classified” until the permit was actually issued, they had written notice ahead of the
commission meetings that the application was being considered as an “outdoor and off-
highway recreation area,” and they did not contest this description. Had they done so, the
commission would have had an opportunity to consider whether another classification or
board of adjustment interpretation was necessary.15 Because the neighbors did not raise it,
we decline to determine whether the commission erred by not seeking such interpretation.
We note, however, that the purpose of Appendix A is to determine whether a proposed use
is permitted, not permitted, or requires a CUP. Although the neighbors assert that the

15 Alternatively, the commission and the Norsemen argue that the neighbors forfeited the
issue by not appealing the commission’s CUP decision to the board of adjustment. Under
section 10.08.a of the ordinance, “[a]ppeals may be taken by any person aggrieved, or by
any officer, department, board, or bureau of a town, municipality, county, or state,” and
must be taken “within thirty (30) days by filing with the Board of Adjustment a notice of
appeal specifying the grounds thereof.” Aitkin County, Minn., Zoning Ordinance § 10.08.a
(2019). Because we conclude that the neighbors failed to properly raise the classification
issue at all, we need not reach this argument. However, we note that Minn. Stat. § 394.27,
subd. 5 (2020)—which mirrors section 10.08.a of the ordinance here—does not “grant[] a
county board of adjustment authority to review a county board’s CUP decisions.” Molnar
v. Cnty. of Carver Bd. of Comm’rs, 568 N.W.2d 177, 180 (Minn. App. 1997).

18
commission failed to assign a proper label to the Norsemen’s proposal, they do not actually
assert that the use is not permitted. In fact, they have consistently maintained that the
Norsemen’s use requires a CUP—the process that the commission followed here. 16
II. The commission’s decision to grant the CUP was not unreasonable, arbitrary,
or capricious.

The neighbors next argue that the commission’s approval of the CUP was arbitrary
and capricious for four reasons. This court undertakes an independent review of the
commission’s record to determine whether its decision was unreasonable, arbitrary, or
capricious. Schwardt, 656 N.W.2d at 386. In doing so, this court defers to a CUP decision
“when the factual basis for the [decision] has even the slightest validity.” Roselawn
Cemetery v. City of Roseville, 689 N.W.2d 254, 259 (Minn. App. 2004) (quotation
omitted). On appeal, the neighbors carry the burden to “establish that the [Norsemen’s]
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.” Schwardt, 656 N.W.2d at 387. We address each of
the neighbors’ four arguments in turn.
A. The Norsemen’s ability to comply with zoning requirements
First, the neighbors argue that the commission’s decision was arbitrary and
capricious because the Norsemen “did not show the ability to comply with standards.”

16 The neighbors initially sent two letters to the county asserting that a CUP was required.
Their September 2019 letter asserted that “[t]here are at least two possible [Appendix A]
classifications that would likely fit the Norseman’s [sic] use of the Norseman Property:
‘Assoc. (Clubs, Lodges) private’ and ‘Race Track.’” Their November 2019 letter used
similar language.

19
Here, the neighbors do not point to a specific ordinance standard that the Norsemen cannot
comply with. Instead, they point to letters and public comments complaining about the
Norsemen’s behavior prior to the CUP application process. According to the neighbors,
the Norsemen’s behavior was “intolerable to local residents” and the Norsemen
disregarded private property marked with “no trespassing” signs. The Norsemen dispute
these allegations, pointing to evidence that they do comply with rules—for example, the
facts that they complied with the cease-and-desist order and followed MPCA
recommendations to correct stormwater issues. The Norsemen also question the credibility
of the public comments criticizing them and point to a different public comment that calls
the Norsemen “good stewards of the land” and “just normal people.”
The record certainly reflects that this CUP application was a contentious issue in the
community. Many commenters cited concerns about the Norsemen and the environmental
and social impacts of their proposed recreation area. However, the record also contains
comments from the Norsemen about their desire to be good environmental stewards and
good community members. An appellate court’s function in reviewing a land-use decision
is “not to weigh the evidence, but to review the record to determine whether there was legal
evidence to support the zoning authority’s decision.” Barton Contracting Co. v. City of
Afton, 268 N.W.2d 712, 718 (Minn. 1978). And the commission imposed a series of
conditions on the Norsemen to lessen the potential adverse impacts of their riding,
including a ban on competitive events, a ban on operating during the peak of hunting
season, and a requirement that the Norsemen only ride during daylight hours. If the
Norsemen violate these conditions, section 11.05 of the ordinance provides a remedy— the
20
commission may revoke a CUP for “good cause,” including “any violation of the agreed
upon conditions.” Aitkin County, Minn., Zoning Ordinance § 11.05 (2019). On this
record, we cannot conclude that the neighbors’ concerns about the Norsemen’s prior
behavior are sufficient to render the commission’s decision arbitrary or capricious.
B. The sufficiency of noise studies
The neighbors next argue that the noise study that the commission relied on was
insufficient. Citing public comments as well as Dr. Braslau’s memoranda, they contend
that Mr. Bub’s study was (1) biased, (2) insufficient to demonstrate compliance with state
noise standards, and (3) conducted under suspiciously high background noise conditions.
Although the neighbors do not point to a particular finding or ordinance standard, noise
concerns are relevant to the commission’s findings that the Norsemen’s proposal “will not
be injurious to the use and enjoyment of the environment or of other property in the
immediate vicinity,” is “consistent with a desirable pattern of development for the locality
in general,” and is “not injurious to the public health, safety and general welfare.” Notably,
the neighbors and many other community members submitted comments addressing the
importance of quiet to their use and enjoyment of the environment and their property.
Nonetheless, the neighbors’ noise concerns do not render the commission’s CUP decision
arbitrary or capricious, considering our deferential standard of review and the steps the
commission took to discuss, analyze, and weigh conflicting evidence on this issue.
In general, “courts should ordinarily defer to a [zoning authority’s] judgment on
conflicting evidence.” RDNT, 861 N.W.2d at 76. In particular, “[w]ith expert witnesses,
[appellate courts] do not attempt to weigh the credibility of conflicting experts, but instead
21
review the record to ensure that the decision had support in the record.” Id. (quotation
omitted). The record in this case contains conflicting evidence regarding the noise impacts
of the project. Some evidence supports the Norsemen’s permit. For example, information
in the EAW suggests that the Norsemen’s proposal would comply with state noise
standards. Based on the EAW, the MPCA commented that “it is not expected that the
described use of this site would cause any issues with the state noise standards.” And the
Norsemen’s expert (Mr. Bub) similarly opined that the proposed recreation area would
comply with relevant state outdoor and vehicle noise standards. Other evidence supports
the neighbors’ position. In particular, the neighbor’s expert (Dr. Braslau) cast legitimate
doubt on the credibility of the EAW’s analysis and Mr. Bub’s noise study. However, Mr.
Bub responded to some—though not all—of Dr. Braslau’s concerns. And an MPCA staff
member reviewed Mr. Bub’s study and stated that she “didn’t have any concerns about the
study.”
17 The commission chair stated during deliberations that the MPCA’s response was
to her “the final decision-making point on that topic,” and that she did not find “any
discrepancies in the sound study that was presented by the petitioner.” While discussing
the commission’s findings of fact, the chair again cited the Norsemen’s noise evidence as
a reason for her position, and three commissioners agreed.

17 The neighbors argue that the commission’s decision to send Mr. Bub’s report to the
MPCA, but not Dr. Braslau’s report, was also indicative of arbitrary and capricious
decision-making. However, there was no requirement that the commission obtain MPCA
analysis of either study.

22
On this complicated record, the commission might well have reached a different
conclusion—in fact, one commissioner voted against the Norsemen’s application because
of concerns over noise. However, “this court may not substitute its judgment, if there is a
legally sufficient reason for [a CUP] decision, even if it would have reached a different
conclusion.” BECA of Alexandria, L.L.P. v. Cnty. of Douglas ex rel. Bd. of Comm’rs, 607
N.W.2d 459, 463 (Minn. App. 2000). “County zoning authorities have wide latitude in
making decisions on CUPs,” and “except in rare cases where there is no rational basis for
the decision, it is the duty of the judiciary to exercise restraint and accord appropriate
deference to civil authorities in routine zoning matters.” Big Lake, 761 N.W.2d at 491
(quotations omitted). Under this deferential standard of review, the commission’s findings
on noise had sufficient factual basis in the record and its decision was not arbitrary or
capricious. See RDNT, 861 N.W.2d at 75-76.
C. Public opposition to the CUP

The neighbors’ third contention is that the commission erred by disregarding
“overwhelming public input against issuing the CUP.” In general, “[c]ommunity
opposition to a landowner’s desire to use his property for a particular purpose is not a
legally sufficient reason for denying a [CUP].” Scott Cnty. Lumber Co. v. City of Shakopee,
417 N.W.2d 721, 728 (Minn. App. 1988), rev. denied (Minn. Mar. 23, 1988); see also BBY
Invs. v. City of Maplewood, 467 N.W.2d 631, 635 (Minn. App. 1991), rev. denied (Minn.
May 23, 1991). However, “neighborhood feeling . . . may still be taken into account.”
Swanson v. City of Bloomington , 421 N.W.2d 307, 313 (Minn. 1988). In particular, a
zoning authority “may consider neighborhood opposition if based on concrete
23
information.” SuperAmerica Grp., Inc. v. City of Little Canada, 539 N.W.2d 264, 26 7
(Minn. App. 1995), rev. denied (Minn. Jan. 5, 1996). And non-expert comments may be
sufficient to rebut expert testimony. Id.; BBY, 467 N.W.2d at 635. Here, while community
opposition to the CUP was significant and concrete, the record indicates that the
commission considered that opposition, and we do not find its decision arbitrary or
capricious.
Several facts in the record indicate that the commission considered the comments it
received from the public. For example, at the commission’s January 25 meeting, the
commission “agreed to skip the Board comment period in order to hear the public’s
testimony.” During that meeting, the commission and county staff asked questions of both
the Norsemen and the commenters opposed to the project. Additionally, the commission
sought to extend its decision timeline specifically in order to “take into consideration all of
the information received” at the meeting. The commission then sought additional
information in response to public comments received at the meeting. And the
commission’s conditions barring races and limiting hours and dates of operation reflect
community concerns over the impacts of motorcycle noise. Because the commission
considered the neighbors’ comments and incorporated them into the factual basis for its
CUP decision, we cannot conclude that it disregarded community opposition or reached an
arbitrary or capricious decision.

24
D. Relator Brian Zimmerman’s PTSD
Finally, the neighbors contend that the commission’s decision was arbitrary and
capricious because it showed “disregard” for Brian Zimmerman’s PTSD condition.18 We
disagree, because the record shows that the commission considered the impacts of the
proposed use on neighboring properties and the record supports its conclusion. Given both
the general evidence in the record about motorcycle noise and Brian Zimmerman’s specific
concerns about his own property and health, the commission could reasonably have
concluded that the Norsemen’s use would affect the “use and enjoyment” of the
Zimmerman property. However, as discussed above, “this court may not substitute its
judgment, if there is a legally sufficient reason for [a CUP] decision, even if it would have
reached a different conclusion.” BECA of Alexandria, 607 N.W.2d at 463. At the
commission’s February 22 meeting, the chair acknowledged concerns over “whether or not
[the proposal] would be affecting a resident who has served our armed services and has a
condition based upon that service and whether or not this would ca use him some personal
harm.” She stated, however, that “as much as I respect and honor those that have served
in our service for our country, I do not find that that would be a legitimate reason to deny

18 After Brian Zimmerman’s death, the Norsemen filed a motion to “dismiss an issue as
moot and strike the related portion of relators’ brief” on October 27, seeking dismissal of
the neighbors’ arguments related to Brian Zimmerman’s PTSD. “An appeal should be
dismissed as moot when a decision on the merits is no longer necessary or an award of
effective relief is no longer possible.” Dean v. City of Winona, 868 N.W.2d 1, 5 (Minn.
2015). Here, the Norsemen have not shown that a decision is unnecessary or that relief is
no longer possible—four relators continue to assert that the commission’s decision to grant
a CUP was arbitrary and capricious, and relief is still possible. Thus, we deny the
Norsemen’s motion and consider the neighbors’ argument.
25
this permit.” The commission concluded from conflicting evidence, including the noise
studies discussed above, that the Norsemen’s use would not be injurious to “the use and
enjoyment . . . of other property in the immediate vicinity” or “the public health, safety,
and general welfare.” The record contains sufficient evidence to support these conclusions,
including as they applied to Brian Zimmerman. We therefore do not find the commission’s
decision arbitrary or capricious.
Affirmed; motion denied.