In re: County Board action notice on interim use permit request to operate a kennel on Parcel Number R35.14.20.300.020.

This opinion is nonprecedential except as provided by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
A21-0498

In re: County Board action notice on interim use permit request to
operate a kennel on Parcel Number R35.14.20.300.020.

Filed March 7, 2022
Reversed and remanded
Gaïtas, Judge

Blue Earth County Board of Commissioners

Jacob M. Birkholz, Michelle K. Olsen, Birkholz & Associates, LLC, Mankato, Minnesota
(for relators Rick DeMartini and Angela DeMartini)

Patrick R. McDermott, Blue Earth County Attorney, Susan B. DeVos, Assistant County
Attorney, Mankato, Minn esota (for respondent Blue Earth County Board of
Commissioners)

Considered and decided by Gaïtas, Presid ing Judge; Smith, Tracy M., Judge; and
Slieter, Judge.
NONPRECEDENTIAL OPINION
GAÏTAS, Judge
In this certiorari appeal, relators Angela and Rick DeMartini challenge the denial of
their application for an inte rim use permit (IUP) to operate a commercial dog kennel on
their property. Because respondent Bl ue Earth County Board of Commissioners
unreasonably denied the app lication, we reverse and re mand for approval of the IUP
subject to reasonable conditions.
2
FACTS
The DeMartinis own property in an area of rural Blue Earth County that is zoned
for agricultural use. They operated a commercial dog kennel on their property, which was
not a permitted use under the co unty’s zoning laws. In Oc tober 2020, the DeMartinis
applied to the county fo r an after-the-fact variance so that they could continue to operate
and expand the business. After a public hearing, where neighbors complained of excessive
barking and trespassing dogs, th e Blue Earth County Board of Adjustment denied the
variance request.
In December 2020, the DeMartinis a pplied to the county for an IUP. 1 Their IUP
application proposed a new fa cility that they would build in a different area of their
property. The DeMartinis also submitted a business plan for the kennel, which explained
their intention to create a new facility for up to 12 adult dogs and their puppies and detailed
mitigation measures to address past concer ns about noise and tr espassing dogs. Those
measures included the addition of sound-proof walls, privacy fencing, garage-style doors,
and new trees, as well as using bark collars for the dogs.

1 An IUP allows a property owner to temporarily use their land in a manner not otherwise
permitted under the applicab le zoning ordinance. See Minn. Stat. § 394.303 (2020)
(defining “interim use” as a “temporary use of property until a particular date, until the
occurrence of a particular event, or until zoning regulations no longer permit it,” and
describing authority of gove rning body to grant IUPs); Blue Earth, Minn., Code of
Ordinances (BCO) § 24-3(b) (2020) (defining an “[i]nterim use permit” as “a permit issued
by the board of commissioners for a temporar y use of a property in accordance with
procedures specified in this chapter which would enable the board of commissioners to
assign site specific conditions to a proposed use”).
3
County staff recommended approval of th e DeMartinis’ application and proposed
23 conditions. Then, the application was forwarded to the Blue Earth Planning and Zoning
Commission. The planning commission took p ublic comments and considered the IUP
application at two public meetings. Ther e are detailed minutes from both meetings.
According to those minutes, five neighbors opposed the IUP application, complaining that
the DeMartinis had not been able to control barking in the past and that dogs continued to
trespass onto their properties. Neighbors also noted an increase in road traffic and
expressed concern about their property values. And some ne ighbors referenced a text
message that the DeMartinis allegedly sent to a neighbor after the hearing on their variance
application. The message purportedly “indicated that five previous County actions were
overturned in recent years” and that the DeMartinis “would be taking legal action.”
After considering Blue Earth County ordinances and staff’s proposed findings, the
planning commission voted four to one to recommend denial of the IUP to the county board
because the application failed to satisfy three factors under th e county ordinance. 2 The
planning commission members who voted to recommend denial concluded that (1) the
interim use would be injurious to neighbors’ use and enjoyment of their property, (2) there
were insufficient measures to prevent or c ontrol offensive noise and dust from vehicles
accessing the property, and (3) “[t]he protection of the public’s health, safety, morals and
general welfare have NOT been addressed through the required performance standards for

2 A county ordinance requires the planning co mmission to consider 15 factors before
forwarding a recommendation to approve an IUP to the county board. BCO § 24-47(f)(1)
(2020).
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this type of interim use and in the [pro posed] conditions.” They observed that the
DeMartinis had previously failed to address barking and tr espassing dogs, which showed
“an unwillingness . . . to take these matters seriously and keep dogs under control, and a
lack of regard for the neighboring property owners.” They noted that “there is additional
dust from vehicles accessing the property from the township road with no attempts at dust
control.” And at least one member of the planning commission stated that he was troubled
by the alleged text message sent by the DeMa rtinis. Although one planning commission
member observed that the IU P application “looks good on paper” and “it looks like a
fantastic plan, well thought out and expensive,” the commission generally agreed that the
DeMartinis’ “past actions” in using their land for a kennel without county approval and
failing to control their dogs warranted denial.
At a public meeting on February 18, 2021 , the county board voted three to two to
deny the IUP. On March 1, 2021, county staff prepared a letter notifying the DeMartinis
of the decision. The letter stated:
The Blue Earth County Board of Commissioners held a
public hearing on the request on February 16 th. Following a
public comment period and discussion by the Board, a motion
was made to deny the request. By roll call vote, the Board
voted three in favor to two opposed to pass the motion thereby
denying the request.

The letter ordered the DeMartinis to discontinue operating a kennel on their property.
By writ of certiorari, the DeMartin is appeal the county’s decision.
5
DECISION
The DeMartinis ask us to reverse the county’s decision denying their IUP
application. Appellate courts narrowly re view municipal land-use decisions using a
rational-basis standard. Mendota Golf, LLP v. City of Mendota Heights, 708 N.W.2d 162,
179-80 (Minn. 2006). Because local authorities have wide discretion in land-use decisions,
“we will reverse only when a decision lacks a rational basis or the city’s actions are
arbitrary, capricious, discriminatory, or illegal.” Concept Props., LLP v. City of
Minnetrista, 694 N.W.2d 804 (Minn. 2 005) (quotation omitted), rev. denied (Minn.
July 19, 2005). “An agency decision is arbitrar y and capricious if it is an exercise of the
agency’s will, rather than its judgment . . . .” CUP Foods, Inc. v. City of Minneapolis, 633
N.W.2d 557, 565 (Minn. App. 2001), rev. denied (Minn. Nov. 13, 2001). To obtain
reversal, the applicant must show “that the reasons for the denial either are legally
insufficient or had no factual basis in the record.” Yang v. County of Carver, 660 N.W.2d
828, 832 (Minn. App. 2003).
Preliminarily, we note that the record of the county board’s decision-making process
is limited. There is no transcript of the proceedings before the county board. 3 There are

3 For appellate review by certiorari, a rela tor may order a transcript of audiotaped
proceedings from the governing body and make financial arra ngements for transcription.
Minn. R. Civ. App. P. 115.04, subd. 2. Then, the governing b ody must arrange for
transcription and the reporter must file the transcript. Id. The DeMartinis requested a
transcript from the county. But according to the DeMartinis , the county responded that
“they do not obtain transcripts of the hearings and do not have a reporter that would be
assigned to this task.” Apparently unaware that the county was oblig ated to arrange for
transcription of any audiotaped proceedings, the DeMartinis attempted to retain a private
court reporter to no avail. Eventually, they gave up on the prospect of obtaining a transcript
and filed a proposed statement of the proceedings with this court’s permission. See Minn.
6
no meeting minutes. And the letter to the DeMartin is informing them of the denial does
not detail why their IUP app lication was denied. “Gover nmental bodies must take
seriously their responsibility to develop and preserve a record that allows for meaningful
review by appellate courts.” In re Livingood, 594 N.W.2d 889, 895 (Minn. 1999).
The DeMartinis do not challenge the count y’s development or preservation of a
record of the county board’s decision. Instead, the parties agree that the board effectively
adopted the planning commission’s rationale for denying the IUP. They ask us to consider
the planning commission’s reasons for recommending denial.
The DeMartinis contend that the board’s decision was arbitrary, capricious, and
unreasonable. They argue that the planning commission recommended denial based solely
on their prior history and failed to consider th e concrete proposals they submitted in their
IUP application to address those concerns. The county responds that the board followed

R. Civ. App. P. 110.03 (providing that appellant may file a statement of proceedings within
14 days of filing the notice of appeal when “no report of all or any part of the proceedings
at a hearing or trial was made, or if a transc ript is unavailable”); Minn. R. Civ. App. P.
101.02, subd. 4 (“‘Trial court’ means the cour t or agency whose decision is sought to be
reviewed.”). This court later ordered the county to either accept the DeMartinis’ statement
of the proceedings or provide a modified version. Minn. R. Civ. App. P. 110.03 (providing
that respondent may file objections or propos ed amendments to appellant’s statement of
proceedings). The county provided its own statem ent of the proceedings, which states in
part:

On February 16, 2021, the Blue Earth County Board of
Commissioners considered the DeMartinis’ interim use permit
application. The Board heard comments from the DeMartinis’
attorney and numerous neig hboring property owners who
opposed the application. The Board extensively discussed the
application and ultimately voted to deny the application by a
vote of 3-2.
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county ordinances and provided a reasoned decision to deny the IUP application that has a
sufficient basis in the planning commission’s factual record.
As noted, the planning commission provid ed three reasons for recommending denial
of the DeMartinis’ IUP applic ation. The first stated re ason was the impact of the
DeMartinis’ kennel on neighbors. Under the applicable Blue Earth County ordinance, the
planning commission must address whether “the proposed use will not be injurious to the
use and enjoyment of other property in the immediate vicinity fo r the purposes already
permitted.” BCO § 24-47(f)(1)(j). At the pub lic meetings, several neighbors told the
planning commission that the DeMartinis’ existing kennel was a source of uncontrolled
barking and occasional trespa ssing dogs. These neighbor s were convinced that the
DeMartinis would never be able to control these problems. One neighbor suggested that if
bark collars were used and barking was co ntrolled, the IUP would not pose a problem;
however, the neighbor stated that the DeMar tinis “are unable to control the barking.”
Another neighbor noted that for five years, the DeMartinis “have done nothing but put up
a fence.” And a third neighbor suggested that the DeMartinis “find another place to raise
their dogs and not . . . keep dragging ever yone through this process.” The planning
commission concluded that the IUP would impa ct neighbors’ use and enjoyment of their
property because the DeMartin is’ prior actions “show an unwillingness . . . to take these
matters seriously and keep dogs under control, and a lack of regard for the neighboring
property owners.”
8
“Community opposition to a landowner’s desire to use his property for a particular
purpose is not a legally sufficient reas on for denying a conditional use permit.” 4 Scott
Cnty. Lumber Co. v. City of Shakopee , 417 N.W.2d 721, 728 (Minn. App. 1988), rev.
denied (Minn. Mar. 23, 1988). The decision-ma king body may consider neighborhood
opposition when it is based on concre te observations and information. See Roselawn
Cemetery v. City of Roseville, 689 N.W.2d 254, 260 (Minn. App. 2004) (“A city council is
free to disregard an expert’s opinion when it is presented with co nflicting non-experts’
opinions, including those of area residents, so long as the reasons are concrete and based
on observations, not merely on fear or speculation.”); SuperAmerica Grp., Inc. v. City of
Little Canada , 539 N.W.2d 264, 267 (Minn. A pp. 1995) (identifying cases where
nonexpert, landowners’ opinions were preferred over expert opinions), rev. denied (Minn.
Jan. 5, 1996). In addition to generalized opposition to the DeMartinis’ kennel, a few
neighbors offered concrete information about past incidents when they were bothered by
barking and trespassing dogs. But the neig hbors’ concerns about the IUP—which would
relocate the kennel on the property and would include specific new measures to address
barking—were purely speculative. They surmised that the DeMartinis would never be able
to control barking, but this was based on assumptions that the DeMartinis would not
address the problem and not on any of the prop osals included in the IUP application. In

4 Under Blue Earth County ordinances, the application process for conditional use permits
(CUPS) and IUPs is the same. BCO § 24-47( e). The primary distinction between these
permits is that a CUP “shall be valid as long as the conditions attached are met,” id.
(e)(8)(a), whereas an IUP is “for temporary use of a property,” BCO § 24-3.
9
turn, the planning commission’s finding that th e DeMartinis were “unwilling” to address
problems affecting the neighbors was merely conclusory.
Moreover, in basing its findi ng on neighbors’ complaints about historical events,
the planning commission failed to meaningfully address the numerous measures that the
DeMartinis had proposed to address these c oncerns, including building an entirely new
facility, installing a privacy fence, planting trees, and using bark collars. The denial of a
conditional-use application is arbitrary if the applicant established that a reasonable
condition is available to eliminate the basis for denial. RDNT, LLC v. City of Bloomington,
861 N.W.2d 71, 78 (Minn. 2015). 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). Here, although th e planning commission observed that the IUP
application “look[ed] good on paper” and was “a fantastic plan,” it did not consider whether
the DeMartinis’ specific proposals, in conj unction with the proposed conditions, would
eliminate excessive barking and trespassing. We therefore conclude that the denial of the
IUP based on neighbors’ concerns was arbitrary.
The planning commission’s second reason for recommending denial of the IUP was
that the DeMartinis “have not taken the nece ssary measures to contain their dogs or to
control offensive noise from ba rking dogs. In addition, th ere is additional dust from
vehicles accessing the property from the township road with no attempts at dust control.”
This reason related to the factor requiring the planning commission to consider whether
“adequate measures have been or will be taken to prevent or control offensive odor, fumes,
dust, noise and vibrati on, so that none of these will co nstitute a nuisance, and to control
10
lighted signs and other lights in such a manner that no disturbance to neighboring properties
will result.” BCO § 24-47(f)(1)(l ). To the extent this reas on again relied on generalized
neighbor complaints about the DeMartinis’ past conduct without addressing the proposed
conditions to eliminate these concerns, it lacks a factual basis and is arbitrary.
As to the concern about dust , the record reveals that neighbors claimed that “the
kennel creates a lot of traffic” and that one neighboring family “applied calcium chloride
to the road to control dust at a cost of $600.” But the planning commission found that “[i]t
is unlikely the limited increase in traffic w ill create traffic conges tion or hazards on the
township road.” And beyond the neighbor’s claim about taking measures to control dust,
the record contains no other factual info rmation about a dust pr oblem and does not
reference any ordinances or re gulations concerning dust in an agricultural zone. Finally,
the planning commission disregarded the DeMartinis’ discussion of traffic in their business
plan, which states that “there will be less than 10 cars in a four-day period coming to the
kennel to pick up and view puppies.” Gi ven the factual record—which contains one
unspecific statement about a neighbor us ing a chemical to control dust—it was
unreasonable of the planning commission to deny the IUP application based on dust. See
Yang, 660 N.W.2d at 832 (stating that zoning decisions are unreasonable when they have
no factual basis in the record).
Finally, the planning commission recommende d denial of the IUP because “the
protection of the public’s health, safe ty, morals and general welfare have NOT been
addressed through the required pe rformance standards for this type of interim use and in
the [proposed] conditions.” The planning co mmission was required to consider whether
11
an IUP includes “specific conditions and such other conditions . . . as required for the
protection of the public’s health, safety, morals and general welfare.” BCO § 24-
47(f)(1)(o). But the planning commission did not provide any factual or legal basis for its
conclusion on this factor, and we can find none in the record . Thus, it was unreasonable
for the planning commission to deny the IUP application on this ground.
As our standard of review recognizes, we are reluctant to interfere with a county’s
land-use decisions. See PTL, L.L.C. v. Chisago Cnty. Bd. of Comm’rs , 656 N.W.2d 567,
571 (Minn. App. 2003) (empha sizing narrow scope of appellate review of local land-use
decisions). But here, where the planning commission’s decision to deny the IUP
application was based primarily on speculation that the DeMartinis would not comply with
an IUP and not based on their IUP application, the decision was arbitrary, capricious, and
unreasonable.
Generally, “when a govern mental body denies a perm it with such insufficient
evidence that the decision is arbitrary and capricious, the court should order issuance of the
permit.” Livingood, 594 N.W.2d at 895. Accordingly, we reverse and remand to the
county board to approve the IUP application subject to reasonable conditions.
Reversed and remanded.