Court of Appeals 12.22.09

The Court grants an outright reversal of a Morrison County CUP denial, ordering a CUP grant to a feedlot.  It should have been a remand, as crucial parts of the record – particularly on environmental impacts – come across as unclear or incomplete.  Normally, that signals a return to the County Board to correct any sloppiness in the decision, or at least to get the facts straight to see if the Board can make the right decision.  Instead, this Court went straight to the second-guess for some reason.   The Court’s irritation with the County Board permeates the opinion and likely dictated the harsher result.  Where did it come from? 

My money is on the Board’s second-guessing of its Planning Commission.  Over the last three or four years, the Court has consistently knocked down Council or Board decisions that go against a PC recommendation to approve.  In terms of legal arguments, the PC normally recommends conditions, which then gives the applicant a near slam-dunk argument that “reasonable conditions” can address any concerns.  It’s usually the atmospherics that doom the decision, though; the records of the Council or Board meetings that reverse the PC recommendations are usually circus sideshow-esque.  In a situation where everything has to be meticulously documented and nailed down, the elected bodies in this position usually do the exact opposite – ignore chunks of the application, rely heavily (or entirely) on one or two speakers who oppose the project, drag in dirt on the applicant from other projects, or invent vague and unattainable conditions or scenarios for approval.  Well, the Morrison County Board more or less did all of the above.  Making matters worse, this was the feedlot applicants’ third attempt at getting a CUP, so the Board’s knee-jerk reaction looks even worse in contrast to (what the Court presents as) the Planning Commisison’s measured and reasoned approach. 

We’re not quite to the point where we need to adopt a principle, “don’t ever, EVER overrule the Planning Commission.”  A PC recommendation should be seen as changing , that the Council or Board no longer has a free hand in the matter.  If the Council tends towards opposing the project, the deliberations must focus on the PC’s recommendations and especially the recommended conditions.  Try to refute any of the PC’s points in four sentences or less.  Make sure that if neighbors’ testimony is cited as supporting evidence that at least one document or “expert” statement also supports the finding (if neighbor opposition is all there is, then approve the permit).  When deliberations are done, take a recess to let the planner or clerk write down a set of findings and conclusions before voting.  Deliberate over the new document for a few minutes before taking a vote.  It won’t be a short meeting, but then the Court of Appeals won’t be granting land-use permits in your town, either.

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