Roger Francis Miller, et al., Appellants,

This opinion is nonprecedential except as provided by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
A22-0672

Roger Francis Miller, et al.,
Appellants,

vs.

Baytown Township, a Minnesota Municipal Corporation,
Respondent,

Derrick Custom Homes, LLC,
Respondent.

Filed February 6, 2023
Affirmed
Cochran, Judge

Washington County District Court
File No. 82-CV-21-3331

Timothy J. Keane, Diane Peterson, Kutak Rock LLP, Minneapolis, Minnesota (for
appellants)

Julia J. Nierengarten, Meagher + Geer, P.L.L.P., Minneapolis, Minnesota (for respondent
Baytown Township)

Nicholas J. Vivian, Kevin S. Sandstrom, Eckberg Lammers, P.C., Stillwater, Minnesota
(for respondent Derrick Custom Homes, LLC)

Considered and decided by Reilly, Presiding Judge; Worke, Judge; and
Cochran, Judge.
2
NONPRECEDENTIAL OPINION
COCHRAN, Judge
Appellants challenge the district court’s grant of summary judgment upholding
respondent-township’s issuance of a conditional use permit (CUP) for a new housing
development to be located near appellants’ residences. On appeal, they argue that the
township’s grant of the CUP was unreasonable, arbitrary, and capricious because (1) the
township misapplied its zoning ordinance and (2) the township’s findings in the resolution
approving the CUP lack substantial evidentiary support. We affirm.
FACTS
In December 2020, respondent Derrick Custom Homes LLC applied to respondent
Baytown Township for a CUP to build 101 homes on a 195-acre parcel as an “open space
development” (OSD). An OSD is “[a] grouping of residential structures on smaller lots
than allowed in the specific zoning district, leaving some land dedicated as open space.”
Baytown Township, Minn., Zoning Ordinance (BTZO) ch. 2, pt. 3, § 4.2(8).1 As proposed,
the development will consist of lots ranging from approximately 0.5 to 1.0 acre but over
50% of the 195-acre parcel will remain as open space. A CUP is required for the
development because the 195-acre parcel is in an area zoned for “single family estates”
with a minimum lot size of 2.5 acre s. See BTZO ch.2, pt. 2, § 2.2(1)(A)(D) (establishing
lot size for singe family estates).

1 We cite to the version of the ordinance from 2018 in effect at the time of the township’s
CUP decision, published on the township’s website.
3
The development (black-and-white plat shown below) will be bounded by a
wildlife-management area to the north, Osgood Avenue to the east, a railway to the south,
and a neighborhood of single-family estates known as Pauley Estates to the west. It will
have two access roads—one to the east connecting directly to Osgood Avenue, and one to
the west connecting to Northbrook Boulevard through Pauley Estates via 47th Street North,
which currently is a dead-end cul-de-sac but was platted as a right-of -way to connect to a
future road. The right-of-way on 47th Street has not been abandoned. Appellants Roger
Miller, et al., are residents of Pauley Estates who oppose the development primarily
because of concerns about increased traffic through their neighborhood on 47th Street and
the associated impacts.

4
In January 2021, the township’s planning commission conducted a public hearing,
receiving and considering public comments about various aspects of the proposed
development, including concerns about traffic along 47th Street. The planning commission
recommended that the town board approve the CUP, subject to conditions, including that
Derrick provide (1) “estimates of average daily traffic (ADT) generated by the proposed
development” and (2) “design options to address concerns of traffic on the west side of the
proposed development traveling onto 47th Street.”
As directed, Derrick provided to the board a study on the anticipated traffic impacts
of the proposed development. The study posed three design options for 47th Street: (1) the
original proposal for standard two -way traffic (like the access road toward Osgood
Avenue), (2) partial one-way access, and (3) emergency access only. In evaluating the
options, the study estimated that 47th Street currently sees 142 trips per day. The study
also estimated that the development will generate 953 total trips per day but anticipated an
even split of the 953 new trips between Osgood Avenue and 47th Street, largely because
the development is split into two nearly equal parts by a utility easement. As a result, the
study estimated that traffic on 47th Street would increase to a total of 619 trips under the
two-way option, 380 trips under the one -way option, and not at all under the
emergency-access scenario. The study also noted that the Metropolitan Council estimates
that typical daily volume on a local road like 47th Street is up to 1,000 daily trips and the
Minnesota Department of Transportation (MnDOT) uses an estimate of 700 daily trips.
Because even the proposed two-way option yields traffic volume below those numbers (at
5
619 daily trips), the study opined that the estimated volumes for 47th Street are “within
acceptable levels for a local street.”
In response, appellants submitted a separate traffic study. Their study estimated that
the development would add 1,049 new trips per day. In addressing the distribution of that
new traffic, the study focused primarily on traffic controls at the access points on Osgood
Avenue and Northbrook Boulevard (via 47th Street). The study noted that the Osgood
Avenue access point will be controlled by a traffic light (to be installed with the
development), whereas the Northbrook Boulevard-47th Street access point has only a stop
sign controlling traffic from 47th Street onto Northbrook Boulevard. The study opined that
there will be delays at the Osgood Avenue access point, which will lead to “trip diversion”
and an unequal distribution of development-associated traffic—65% (682 trips) along 47th
Street and 35% (367 trips) at Osgood Avenue. The study noted that 47th Street currently
sees very little traffic because it is a cul-de- sac and opined that the addition of 682 new
trips per day “is a significant change and will adversely impact the quality of life in Pauley
Estates.” The study did not address Met ropolitan Council, MnD OT, or other industry
markers for typical traffic volumes on comparable roads.
The town planner and town engineer also evaluated the traffic issue. They estimated
that the development would add a total of 950 trips per day, with traffic being split roughly
evenly between the two access points, with the result that the intersection at Northbrook
Boulevard and 47th Street would see a total of around 615 trips per day. They recognized
that this level of traffic would be an increase but explained that the new traffic level “would
not be different” from other intersections located in the township and that 47th Street “was
6
built to be able to handle such an increase in traffic.” They also noted that a development
with 75 homes—the number that could be buil t on the 195-acre parcel if it were developed
as zoned for single family estates —would generate more than 700 new daily trips to be
split between the two access points.
The board solicited further input on the traffic issue from the local fire department.
In correspondence with the fire chief, the board outlined the three options that Derrick had
identified for 47th Street traffic and noted that “neighbors along 47th Street” asked for the
emergency-only option with an unpaved, lightly plowed right- of-way that “looks like a
trail” and has a “post-and-chain traffic barrier.” The fire chief responded that it is necessary
for 47th Avenue to be a two-way street, fully plowed and maintained, to afford ambulances
and fire vehicles access to the development. He also stated that an emergency-only option
that satisfied those requirements would be “okay” with the fire department, provided the
emergency restriction was limited to signage, without physical obstructions on the road ,
such as chains or posts.
To receive public input, the board conducted four public hearings and invited
written comments. Traffic along 47th Street was a recurring item of discussion , among
other topics. The board also received input from real estate professionals regarding the
impact that the proposed development could have on property values of nearby homes. At
the last public hearing, the board approved the CUP in a resolution. The resolution
included numerous findings on a range of topics underlying the decision.
Appellants thereafter initiated this action in district court seeking declaratory and
injunctive relief to reverse the CUP approval. The township and appellants filed
7
cross-motions for summary judgment. After joining Derrick as a party and reviewing the
stipulated record of the township proceedings, the district court granted summary judgment
in favor of the township and dismissed appellants’ claims. This appeal follows.
DECISION
On appeal from a district court’s review of a municipality’s zoning decision, we
review the zoning decision independent of the district court’s findings and conclusions.
Roselawn Cemetery v. City of Roseville, 689 N.W.2d 254, 258 (Minn. App. 2004). A
municipality has broad discretion to approve or deny a CUP. BECA of Alexandria,
L.L.P. v. C ounty of Douglas ex rel. Bd. of Comm’ rs, 607 N.W.2d 459, 463 (Minn.
App. 2000). Accordingly, we exercise deference in reviewing a CUP decision, particularly
when it is an approval. Big Lake Ass’n v. St. Louis Cnty. Plan. Comm’n, 761 N.W.2d 487,
491 (Minn. 2009). We will not disturb the decision unless the municipality acted
unreasonably, arbitrarily, or capriciously. Schwardt v. Cou nty of Watonwan,
656 N.W.2d 383, 386 (Minn. 2003); see also Big Lake Ass’n, 761 N.W.2d at 491 (requiring
judicial restraint except in “rare case s where there is no rational basis for the [zoning]
decision”).
In determining whether a decision is unreasonable, arbitrary, or capricious, we
conduct a two -step analysis. RDNT, LLC v. City of Bloomington, 861 N.W.2d 71, 75
(Minn. 2015). We first consider whether the reasons given for the decision are “legally
sufficient.” Id. at 75-76. If so, we then determine whether the reasons have a factual basis
in the record. Id. at 76.
8
Appellants argue that the township’s decision to approve the CUP is arbitrary,
capricious, and unreasonable for two reasons. First, they contend that the township failed
to comply with its own ordinance when approving the CUP . Second, they argue that the
record does not support certain findings that the township relied on in the resolution
approving the CUP. We address each argument in turn.
I. The township ’s reasons for approving the CUP comport with the zoning
ordinance.

“Whether a local zoning body’s decision is reasonable is measured against the
standards set forth in the applicable ordinance.” In re Stadsvold, 754 N.W.2d 323, 332
(Minn. 2008). A CUP decision is unreasonable if it does not meet those standards.
Schwardt, 656 N.W.2d at 387. The interpretation and construction of a zoning ordinance
presents a question of law that we review de novo based on the plain language of the
ordinance. Clear Channel Outdoor Advert., Inc. v. City of St. Paul, 675 N.W.2d 343, 346
(Minn. App. 2004), rev. denied (Minn. May 18, 2004).
The zoning ordinance at issue allows for an OSD in an area zoned for single-family
estates if the township approves a CUP for the development. BTZO ch. 2, part. 3, § 4.3.
The township follows a two-step process when reviewing an application for a CUP for an
OSD. Id. § 4.4(5)(B). The township’s planning commission conducts the first step,
holding a public hearing and review ing the application. I d. The planning commission
“may recommend” granting a CUP “provided” three conditions are satisfied: “[1] the
proposed use is listed as a conditional use for the district and [2] upon a showing that the
standards and criteria stated in this Zoning Ordinance will be satisfied and [3] that the use
9
is in harmony with the general purposes and intent of this Zoning Ordinance and the
Comprehensive Plan.” BTZO ch. 1, § 7.3(1); see BTZO ch. 2, pt. 3, § 4.4(3) (requiring
use of these criteria for reviewing a CUP for an OSD). In assessing this third condition,
the planning commission “shall consider” nine subfactors, including, in relevant part:
(A) The impact of the proposed use on the health, safety and
general welfare of the occupants of the surrounding lands.

(B) Existing and anticipated traffic conditions, including
parking facilities on adjacent streets and lands.

. . . .

(D) The effect of the proposed use on property values and
scenic views in the surrounding area.

(E) The effect of the proposed use on the Comprehensive Plan.

BTZO ch. 1, § 7.3(1).
“Upon receipt of the planning [c]ommission recommendation or after 60 days of the
public hearing, if no recommendation has been received,” the town board reviews the CUP
application and makes a final decision. BTZO ch. 1, § 7.4, ch. 2, pt. 3, § 4.4(5)(B). In
doing so, the board considers the planning commission’s recommendation (if any) and
comments from agencies and the public. BTZO ch. 2, part 3, § 4.4(5)(B). “A decision on
the [CUP] shall include findings of fact.” BTZO ch. 1, § 7.4.
Appellants argue that the township erred in its application of the zoning ordinance
because the township’s findings regarding traffic did not include findings on traffic
conditions on adjacent streets and lands, specifically Pauley Estates. This argument is
unavailing for multiple reasons.
10
First, appellants overstate the ordinance’s requirement for findings. The ordinance
requires the township to “consider” traffic (and eight other subfactors) in evaluating the
three criteria for CUP approval. BTZO ch. 1, § 7.3(1). It also requires the township to
“include findings of fact” in its decision. Id. § 7.4. But it does not require the township to
make findings of fact about each of the nine subfactors. Accepting appellants’ argument
would require adding words to the ordinance, which we will not do. See County of
Dakota v. Cameron, 839 N.W.2d 700, 709 (Minn. 2013) (stating that courts cannot
“add words or phrases to an unambiguous statute”). Moreover, Minnesota Supreme Court
precedent does not require specific findings on each factor that the township considers.
Rather, the township need only “articulate the reasons for its ultimate decision” with
sufficient specificity for a reviewing court to determine whether it applied the relevant
provisions of its zoning ordinance. Stadsvold, 754 N.W.2d at 332 (quotation omitted).
Second, appellants mischaracterize the township’s obligation to consider traffic
impacts when reviewing a CUP application. They contend that the township was required
to evaluate “[e]xisting and anticipated traffic conditions . . . on adjacent streets and lands,”
meaning specifically effects on traffic in Pauley Estates. But they omit several words from
the relevant section of the ordinance. Stated in full, the ordinance requires consideration
of “[e]xisting and anticipated traffic conditions, including parking facilities on adjacent
streets and lands.” BTZO ch. 1, § 7.3(1)(B) (emphasis added.) Viewing all of these words
together, the ordinance plainly requires a comprehensive evaluation of traffic conditions as
they currently exist and as they could be “anticipated” by virtue of the proposed
development, “including”—meaning with particular but nonexclusive focus on—parking
11
facilities near the proposed development. See Douglas v. Stillwater Area Pub. Schs.,
899 N.W.2d 546, 554 (Minn. App. 2017) (“Minnesota appellate courts have consistently
held that ‘including’ indicates a nonexclusive list.”). By omitting the phrase “including
parking facilities on,” appellants change the ordinance’s meaning and overstate the
township’s obligation to consider traffic in nearby areas.
Finally, the record confirms that the township carefully considered traffic, both
within the proposed development and in nearby areas. It held a total of five public
hearings— one before the planning commission and four before the town board. Indeed, it
extended its timeline for reviewing the CUP application and held more public hearings than
required under its ordinance, largely to enable further evaluation of the traffic issue. The
township also considered significant written input from the public, both positive and
negative, with traffic concerns as a frequent focus. And it solicited input from the local
fire department regarding emergency access issues. The township also considered traffic
analyses from Derrick, appellants, and its staff. It weighed multiple options for managing
traffic associated with the development, including the possibility of a second Osgood
Avenue access point and traffic calming options not only within the development but also
at the connection of 47th Street to the development. In doing so, the township accounted
for the interests of all its current and anticipated residents, not only those who live along
47th Street but also future residents of the development and those who reside along and
traverse Osgood Avenue. And its paragraph of written findings regarding traffic (none of
which appellants challenge as inaccurate) fairly summarize its consideration of the issue.
12
In sum, the zoning ordinance required the township to consider the anticipated effect
of the development on traffic within the development itself and surrounding areas, and the
record reflects that the township amply fulfilled this legal obligation.
II. The township’s findings have substantial evidentiary support.
Having discerned no error by the township in its application of its zoning ordinance,
we next consider appellants’ argument that the CUP is invalid because certain findings in
the resolution approving the CUP are not supported by sufficient evidence. When
reviewing the evidentiary support for a municipality’s CUP decision, we do not “weigh the
evidence.” RDNT, 861 N.W.2d at 76 (quotation omitted). We consider only “whether the
evidence could reasonably support or justify the determination.” Stadsvold, 754 N.W.2d
at 332 (quotation omitted). And we defer to the municipality’s “judgment
on conflicting evidence.” RDNT , 861 N.W.2d at 76. A finding is not invalid simply
because another decisionmaker might have resolved an evidentiary conflict differently.
See Nolan v. City of Eden Prairie, 610 N.W.2d 697, 701 (Minn. App. 2000), rev. denied
(Minn. July 25, 2000).
Appellants challenge three of the township’s factual findings: (1) the development
“would not negatively impact the health, safety, or general welfare of those on surrounding
lands”; (2) “there is no evidence that the proposed OSD would negatively impact property
values of surrounding areas”; and (3) the development “would not have any negative effect,
or be out of line with the Comprehensive Plan.” These findings address three of the nine
subfactors that the township must consider when determining “ whether the proposed
13
[conditional] use is in harmony with the general purpose and intent of this Zoning
Ordinance and the Comprehensive Plan.” BTZO ch. 1, § 7.3(1). We address each in turn.
Health, Safety, and General Welfare
Appellants contend that the record does not support the township’s finding of no
negative impact to health, safety, and general welfare from the proposed development. In
support of their argument, they note that the record reflects that the development will lead
to increased traffic along 47th Street. They emphasize that the current level of traffic along
47th Street where they reside is very low and they do not want that to change. But that
“neighborhood opposition” does not justify, let alone mandate, denial of the CUP.
Trisko v. City of Waite Park, 566 N.W.2d 349, 355 (Minn. App. 1997), rev. denied (Minn.
Sept. 25, 1997). Nor does the mere fact of a traffic increase necessarily mean that health,
safety, and general welfare will suffer. To the contrary, the record also contains undisputed
evidence that even if a disproportionate amount of the development-related traffic uses
47th Street, the resulting traffic flow will still be within a range that both the Metropolitan
Council and MnDOT consider typical for that type of road. Similarly, it is undisputed that
47th Street is platted to connect to the 195-acre parcel and that parcel could be developed
with 75 single-family estates without a CUP if the proposed OSD is not built, which means
that increased traffic along 47th Street is a predictable and reasonable change, not a
deviation from the township’s health and safety standards. Accordingly, respondents have
failed to demonstrate that the record does not support the township’s finding that the
development will not impair health, safety, and general welfare.
14
Property Values
As with their argument regarding health, safety, and welfare, appellants look to
increased traffic along 47th Street in disputing the finding regarding impacts on nearby
property values. Specifically, appellants dispute the township’s finding that “there is no
evidence that the proposed OSD would negatively impact property values of surrounding
areas.” Appellants contend that there is conflicting evidence, not “no evidence,” that the
traffic change will damage property values. Appellants are correct—and the township does
not dispute—that there is conflicting evidence on this issue. The record reflects that two
real-estate professionals opined that increased traffic along 47th Street would negatively
affect the property values in that area, while a third opined that the “high end luxury
homes”
2 in the proposed development would enhance the value of nearby properties. The
third professional further opined that the traffic change would not damage the value of
nearby properties because buyers would have no knowledge or expectation of prior
unusually low traffic levels.
While we agree with appellants that the township did misstate the record when it
made the “no evidence” finding, we disagree that the finding is error fatal to the CUP
approval. We reach this conclusion for several reasons. First, under the township’s
ordinance, the impacts on surrounding property values is a subfactor, similar to the traffic
subfactor, that informs the township’s determination whether the proposed development is
in harmony with the zoning ordinance and comprehensive plan. BTZO ch. 1, § 7.3(1)(D).

2 Two estimates place the expected value of the homes in the development at between
$600,000 and $1,000,000.
15
But it is not determinative of whether the board may issue a CUP. Id. Second, the record
confirms that the township duly considered this subfactor and had a sound evidentiary basis
for not finding that the development would impair prope rty values. Third, our deferential
standard of review does not require reversal for a misstatement of the evidence in the
township’s findings but rather requires an assessment of whether there is a “rational basis
for the decision,” with particular deference where the decision is a CUP approval. Big
Lake Ass’n, 761 N.W.2d at 491. In light of these considerations, we conclude that
appellants have not demonstrated that the “no evidence” finding rendered the CUP
approval unreasonable, arbitrary, or capricious.
Comprehensive Plan
Finally, appellants challenge the finding in the board’s resolution that the
development “would not have any negative effect, or be out of line with the Comprehensive
Plan.” They principally emphasize that the comprehensive plan cal ls for preserving the
township’s “rural” and “residential” character with “low-density single family residential
development,” and contend that the development undermines those goals. In doing so,
they overlook that the comprehensive plan expressly recognizes that OSDs play a role in
serving those goals. Specifically, the comprehensive plan notes that the township has
previously approved OSDs and that OSDs are part of the township’s “future land use plan.”
In fact, one of its five land-use goals is to “[ p]ermit options for permitting flexibility in
subdivision design, including lot averaging and [OSDs].” Further, the comprehensive plan
reflects a preference for OSDs with “significant ecological or wildlife habitat value”
because they are more likely to receive support from the Minnesota Land Trust. Because
16
it is undisputed that the proposed OSD will protect ten acres of wetlands and that over 50%
of the proposed 195-acre development will be open space, the development is particularly
consistent with the comprehensive plan.
Appellants also contend that approving a development for 101 homes is inconsistent
with the comprehensive plan’s estimation that the township will see the addition of only
90 households by 2040. But as the comprehensive plan expressly recognizes, that figure
is merely an estimate. The township has discretion in making zoning decisions based on
that estimate, see BECA of Alexandria, 607 N.W.2d at 463, and its discretion reasonably
encompasses approving a development that accommodates a slightly higher increase in
new households. As such, appellants have not demonstrated a lack of evidentiary support
for the finding that the development is not “out of line” with the comprehensive plan.
In sum, appellants have failed to demonstrate that the township’s grant of the CUP
was arbitrary, capricious, or unreasonable. We therefore affirm the decision of the district
court upholding the issuance of the CUP.
Affirmed.