In the Matter of the Application of East River Electric Cooperative 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This opinion is nonprecedential except as provided by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
A21-0885

In the Matter of the Application of East River Electric Cooperative
for a Conditional Use Permit.

Filed April 11, 2022
Affirmed
Segal, Chief Judge

Lyon County Board of Commissioners

Barry R. Gronke, Jr., Stoneberg, Giles & Stroup, P.A., Marshall, Minnesota (for appellant
Scott Josephson)

Jason J. Kuboushek, Andrew A. Wolf, Iverson Reuvers, Bloomington, Minnesota (for
respondent Lyon County Board of Commissioners)

East River Electric Cooperative, Madison, South Dakota (respondent)

Considered and decided by Worke, Presiding Judge; Segal, Chief Judge; and Ross,
Judge.
NONPRECEDENTIAL OPINION
SEGAL, Chief Judge
Relator challenges respondent county board’s grant of a conditional -use permit
(CUP) to respondent electrical cooperative to relocate a 69-kilovolt transmission line along
the right-of-way of a county road. Relator argues that (1) respondent board failed to state,
orally or in writing, adequate reasons for its decision; (2) one commissioner improperly
failed to abstain from voting based on a familial relationship with an affected resident who
opposed the CUP; and (3) a second commissioner improperly failed to abstain from voting
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when, according to relator, the commissioner feared retaliation by respondent electrical
cooperative. We affirm.
FACTS
Respondent East River Electric Cooperative (the electrical cooperative) filed an
application for a CUP in May 2021 to replace an existing 69-kilovolt transmission line in
Lyon County (the county) with a new line to be located in the county right-of-way along a
county road.1 A public hearing was held on the CUP application at a June 2021 meeting
of the Planning Commission (the planning commission) and Board of Adjustment.2
A representative from the electrical cooperative spoke at the hearing and explained
that the CUP was being sought as one part of a larger project to rebuild and relocate the
“1968 vintage” transmission line. He explained that the cooperative’s “system replacement
initiative [was] to move [transmission] lines currently located on cross country sections to
the roadway where possible for better response times during outages and accessibility for
routine patrols and maintenance.” The representative noted that the section of the
transmission line at issue in the CUP application was “flagged by our operations division
as being particularly difficult to access due to the terrain.” He explained that the proposed

1 The county’s right -of-way generally extends 50 feet from the centerline of the county
highway. The electrical cooperative proposed to build the transmission line 48 feet from
the centerline, or, in other words , two feet away from the end of the right -of-way/the
property line for private property. Because the transmission line would be constructed in
the right-of-way, the electrical cooperative would not need to obtain overhang easements
from property owners along the route.

2 The board of adjustment and planning commission are separate entities, but held a joint
meeting.
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relocation site in the county right -of-way alongside a relatively straight, well -maintained
county road would provide easy accessibility to the cooperative’s maintenance crews who
often had to go out during the most inclement weather to determine the source of a power
outage and repair it. He emphasized that it was “crucial for the safety of [the] line crews
and the reliability of [the ] power delivery to [ one of the members of the electrical
cooperative] to locate the new lines in more accessible areas. ” Finally, the representative
noted that the “route for this rebuild was selected after review by our operations and
engineering staff to be the most direct and accessible path between the connection point
and the . . . substation.”
Relator Scott Josephson spoke at the hearing and urged the planning commission to
consider an alternative route he had proposed for the transmission line. He explained that
his family “owns 50 percent of the property that [the proposed transmission line] will come
across in Lyon County ”3 and that he and other residents had concerns regarding the
proposed route. Josephson acknowledged that the alternative r oute was “possibly a little
less convenient” than the electrical cooperative’s preferred route, but argued that it should
be considered because the electrical cooperative’s preferred route would “affect[] the
aesthetics” along the route and residents were “concerned . . . about the health of having a
power line there.”

3 As previously noted, the electrical cooperative proposed to construct the transmission line
in the road right -of-way. The transmission line would therefore not cross Josephson’s
property, but rather run parallel to his property approximately two feet off his property line
in the right-of-way.
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The representative from the electrical cooperative explained that the alternative
route “was reviewed by engineering and operations staff in the field, and it was determined
that it was not a better option for the line due to the meandering alignment of the road, the
amount of trees and terrain, and the road’s condition compared to the primary route.” The
representative further noted that the alternative route suggested by Josephson would “go in
front of a number of other landowners.” The representative indicated that the electrical
cooperative had also considered a request from Josephson to modify the proposed route to
move the power line to the opposite side of the road to avoid passing in front of a house
located on Josephson’s property . The representative explained that “jumping the road”
would require much larger structures than the one being proposed, which would “have a
much larger visual impact and footprint than the standard structures and be roughly ten
times more expensive.” The representative stated that road jumping would also require
relocation of a cooperative member’s three -phase overhead distribution line, “adding cost
to the project and impacting our member’s facilities and operations.”
After receiving comments from Josephson and other residents, the public hearing
was closed and the planning commission voted to recommend to respondent Lyon County
Board of Commissioners (the board) that the board approve th e application for the CUP
with conditions.
The board then held its public hearing on the CUP application . A representative
from the electrical cooperative again spoke at the meeting and described the electrical
cooperative’s process in selecting its pro posed route and why it rejected the alternative
route proposed by Josephson. The representative explained to the board that the proposed
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route ran “along a much better, more maintained road ,” which allowed for “better access
to the line to operate and maintain that and restore it if there is damage during a storm” and
offered a “very direct route.” The representative also indicated that for the electrical
cooperative to construct the transmission line along the alternative route it would need to
remove a number of trees, and that the alternative route ran along a “windy path” that
would “add[] cost and decrease[] the reliability for the lines to serve that distribution
substation for a number of cooperatives.”
Josephson also spoke at the meeting and ag ain argued in favor of the alternative
route. He argued that the decision concerning the location of the transmission line would
“permanently . . . affect[] property values, livelihoods, the aesthetics of [the] homes, and
. . . health.” He acknowledged t he electrical cooperative’s noted concerns with the
alternative route, but argued that the trees along the route “can be removed and [the] roads
can be upgraded and maintained more appropriately” and that the alternative route was a
“feasible alternative a nd need[ed] serious consideration.” In addition, the county board
acknowledged that it had received correspondence from an affected citizen , the daughter
of Josephson who lived in a house along the proposed route, expressing concerns over the
impact the t ransmission lines could have on the health and safety of the residents and
property values along the route.
On a vote of three in favor, with two opposed, the board approved a grant of the
CUP, with conditions, to construct the transmission line along t he proposed route.
Josephson appeals by writ of certiorari.

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DECISION
We review the grant of a CUP under a deferential standard because “counties have
wide latitude in making decisions about special use permits.” Schwardt v. County of
Watonwan, 656 N.W.2d 383, 386 (Minn. 2003). We independently review a county’s grant
of a CUP to determine if it is unreasonable, arbitrary, or capricious. Id. A county acts
unreasonably if the reasons for its decision are legally insufficient or lack a factual basis in
the record. RDNT, LLC v. City of Bloomington, 861 N.W.2d 71, 75-76 (Minn. 2015).
I. The board articulated sufficient reasons for granting the CUP.
In this appeal, Josephson does not argue that the application for the CUP and
proposed route failed to satisfy the CUP criteria. H e argues only that the case should be
remanded to the board because t he board failed to adequately articulate its reasons for
granting the CUP. He argues that the board was “required to, at the very least, reduce the
reason for its decision to a writing,” that the board did not do so, and that “the audio
transcript . . . fails to provide any findings of fact regarding the Board’s decision.”
Josephson relies on White Bear Rod & Gun Club v. City of Hugo to support his
argument. 388 N.W.2d 739 (Minn. 1986). In that case, the city council denied an
application to amend a sp ecial-use permit. Id. at 741. On appeal, the supreme court
explained that “the city council was not required to prepare formal findings of fact” but
“was, at a minimum, required to have the reasons for its decision recorded or reduced to
writing and in more than just a conclusory fashion.” Id. at 742 (quotation omitted). The
supreme court remanded the case back to the city council because the council failed to
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provide “any findings of fact or other explanation of its decision adequate for any judicial
review.” Id.
Here, however, the board provided an adequate record of the reasons for its decision
to grant the CUP to allow for appellate review. First, both the board and the planning
commission meetings were recorded and transcripts of both meetings were included as part
of the record transmitted to this court. See id. (noting that the reasons for the decision on
a special-use permit must be “recorded or reduced to writing” (emphasis added) (quotation
omitted)). The record also included the minutes of the planning commission meeting that
summarize the commission’s findings and decision.
Second, both the planning commission and board discussed , at their respective
meetings, the relevant criteria, the most significant of which is whether the proposed “use
or development conforms to the comprehensive land use plan of the County and is
compatible with the existing neighborhood.” 4 Lyon County, Minn., Zoning Ordinance

4 In addition to the criteri on set out above, t he county’s zoning ordinance, Lyon County,
Minn., Zoning Ordinance art. 22, § 22.2.D.1 (2015), provides that

the County Board may consider the following: (a) Whether the
establishment of the conditional use will not impede the normal
and orderly development and improvement of surrounding
properties. (b) Whether adequate utilities, access roads,
drainage and other necessary facilities have been or are being
provided. (c) Whether adequate measures have been or will be
taken to provide sufficient off -street parking and loading
spaces to serve the proposed use. (d) Whether adequate
measures have been or will be taken to prevent or control
offensive odor, fumes, dust, noise, and vibration, so that none
of these will constitute a nuisance, and to control lights signs
and other lights in such a manner that no disturbance to
neighboring properties will result. (e) Whether there is a
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art. 22, § 22.2.D.1 (2015). The discussion at th e meetings included the fact that the
county’s zoning ordinance provides a preference for siting utility lines, such as the
transmission line, along existing county right-of-ways. Both the planning commission and
board also heard detailed explanations fro m a representative of the cooperative about the
reasons why the cooperative’s proposed route was chosen and why the alternative route
advocated by Josephson was not a satisfactory option for the transmission line.
Third, the motion at the board meeting to approve the CUP stated that it was based
on the recommendation of the planning commission . Indeed, one of the board
commissioners stated, when voting to grant the application for the CUP, that the planning
commission “did an excellent job” and thought t he board “should comply with what they
recommended.” And the planning commission made explicit findings of fact, identifying
the relevant criteria along with reasons why the criteria were satisfied by the proposal. As
noted above, t hese findings were als o summarized in the minutes of the planning
commission meeting.
The planning commission’s findings include the fact that the transmission line
provides a major essential service that would upgrade the existing line, that the electrical
cooperative would be working with the highway department during the construction and
the construction location s would have proper retention structures, and that construction
would take place primarily during normal business hours and would not block the road.
Thus, there i s ample evidence in the record to allow for appellate review of the board’s

demonstrated need for such use. (f) Whether the use will
adversely affect the public health, safety or general welfare.
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decision and we are not faced with the situation in White Bear where there was no such
record.
Thus, with due deference to the “wide latitude ” accorded governing bodies in
making decisions whether to grant a CUP, Schwardt, 656 N.W.2d at 386, we conclude that
the record is adequate to allow for appellate review.
II. There is no evidence of improper influence on the part of the commissioners.
Josephson next argues that two of the board commissioners should have abstained
from the vote on the CUP. He contends that one of the commissioners should have
abstained from the vote “due to his familial relation with affected residents.” He bases this
argument on the assertion that the commissioner’s cousin is married to an affected citizen
who submitted an email to the board in opposition to the proposed route for the
transmission line. He argues that the commissioner should have abstained from voting
because the commissioner “took great effort to defeat the arguments presented by
Dr. Josephson and [the affected citizen]” and it is “unclear if [the commissioner’s] efforts
[were] based on his perceived obligations to his constituents or due to some family
dispute.”
Josephson also argues that another commissioner should have abstained from the
vote on the CUP because the commissioner told him “that he voted to approve the
conditional use permit out of fear of retaliation from the Cooperative.” Josephson does not
identify what specific form of retaliation the commissioner allegedly feared, but theorizes
that “the Cooperative likely has tremendous influence on the time it takes to restore power
to areas affected by severe weather or natural disaster” and therefore “[i]t is possible th at
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[the commissioner] feared that if the Board denied the conditional use permit, the
Cooperative could prolong the time it took to restore power to Lyon County if it were the
victim of severe weather or natural disaster.” He argues that the commissioner therefore
should have abstained because he voted “under duress.”
A decision is arbitrary and capricious if it reflects the decision -maker’s will rather
than its judgment such as when the decision-maker considered factors not intended to be
considered. In re Valley Branch Watershed Dist. , 781 N.W.2d 417, 423 (Minn. App.
2010); see also Chanhassen Chiropractic Ctr., P.A. v. City of Chanhassen , 663 N.W.2d
559, 562 (Minn. App. 2003) (recognizing that “constitutional due process protections
include the right to an impartial decisionmaker” (quotation omitted)), rev. denied (Minn.
Aug. 5, 2003). Thus, a governing body’s decision may be arbitrary and capricious if the
vote on a CUP application was based on impermissible reasons.
The board maintains that Josephson’s claims of improper influence should not be
considered because they are based on information that is outside the record and are being
raised for the first time on appeal . Appellate courts generally will not consider issues not
raised before a county zoning authority. Big Lake Ass’n v. St. Louis Cnty. Plan. Comm’n,
761 N.W.2d 487, 490 -91 (Minn. 2009). “But an appellate court, in its discretion, may
review any matter in the interest o f justice.” Indep. Sch. Dist. No. 709 v. Bonney , 705
N.W.2d 209, 219 (Minn. App. 2005). We also observe that there may be situations in
which a party does not learn of an impermissible motive for voting until after the decision
is made and may need the opportunity to provide additional argument and evidence in the
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interests of justice to ensure fairness. However, we are persuaded that under the
circumstances here the proceedings were fair and impartial.
Our review of the record reveals no evidence of bi as or improper influence on the
part of either commissioner identified by Josephson. Notably, the first commissioner’s
relative submitted a letter to the board prior to the meeting on the application for the CUP,
and although she opposed the CUP, she did not mention any sort of familial dispute that
may have had a bearing on the commissioner’s vote. She therefore had the opportunity to
raise the issue of her familial relationship with a commissioner and did not do so.
We also note that Josephson himself raised the concern at the planning
commission’s meeting that the electrical cooperative could “become[] punitive and
neglect[] . . . any upgrades to the county” if the CUP were denied. A member of the
planning commission responded that he had “never hear d that” and asked Josephson to
provide his source for that information, but Josephson refused to provide the source and
generally stated that “it is someone in the court.” Thus, Josephson was asked to provide
information to support his assertion that the electrical cooperative may retaliate but refused
to do so. It is therefore of his own accord that the record does not contain information that
may support his assertion that such a fear existed and impacted one of the commissioners’
votes.
We therefore reject Josephson’s claims that the vote was tainted by improper
influence and affirm the decision to grant the application for the CUP.
Affirmed.