Court upholds hot-mix permit

WILLMAR -- Kandiyohi County has won a civil lawsuit filed by New London Township residents concerning a permit for an asphalt hot-mix plant.

In a court ruling filed Jan. 7, District Judge Michael Thompson sided with the county in the case.

"I'm glad the court found in our favor," said County Administrator Larry Kleindl, with a note of wariness.

"But it's not a victory you stand up and cheer about," he said. "It's hard to tell if there any winners in this situation."

The 21 citizens listed in the lawsuit may appeal the decision.

"They're considering their options," said Wayne Larson, the attorney who represented them. "They have not decided yet."

Larson had no other comment about the case, which had, ironically, generated sympathy from the county commissioners.

"I had hoped the people would win, but I had my honest doubts they would," said Kandiyohi County Board Chairman Dennis Peterson.

He hadn't spoken to the other four commissioners about the out-come of the lawsuit but he thought they had similar feelings about the case.

"We won the lawsuit, but I do feel for the people," said Peterson. "The law over-ruled me and I can't help that."

The lawsuit was filed last year by the citizens after the county board of adjustment agreed with County Zoning Administrator Gary Geer's decision that a 1981 conditional use permit for a gravel pit and hot-mix plant, which had been approved by the county board 27 year ago, was still valid.

A hot-mix plant had never operated at the site and the gravel pit had been used only occasionally throughout the years.

When the new owner of the pit, Chad Monson Excavating LLC, purchased the property and requested a conditional use permit for a hot-mix plant last year, Geer discovered that the county board had already approved a permit in 1981. The permit was not officially recorded, however, until Geer took that action last summer.

Minutes from that earlier meeting state the permit was approved on a split vote. There is no mention of conditions placed on the permit even though the zoning committee had previously approved and recommended a long list of conditions.

Because the law from 1981 says permits stay with the land even if the land owner changes, Geer and County Attorney Boyd Beccue determined that the old permit was still valid and Monson didn't need to apply for a new one.

Homeowners objected.

They said they never knew the area, located near Long Lake in northern Kandiyohi County, was permitted for a hot-mix plant and they wouldn't have built there if they'd been aware of the permit.

"Naturally I was on the side of the people up there because there are so many new homes that have been built in the area that will be affected if a hot-mix plant does go there," said Peterson.

The citizens said the official board minutes didn't accurately convey the board's intention to include conditions with the permit.

They cited the zoning committee's minutes that detailed the conditions. They also presented numerous county board minutes from other meetings that failed to mention conditions for other permits that had been approved. The former county administrator even signed an affidavit saying the board had approved conditions for the hot-mix plant.

They had argued that if the conditions were in place, the previous owner had not met the conditions and therefore the old permit was invalid.

In his ruling, Thompson said since the other documents were not part of the board's administrative record, they could not be considered.

"The administrative record in this case speaks for itself," wrote Thompson.

Peterson said he believes there were conditions attached to the original permit but they were not recorded properly. "Sometimes law doesn't go with our opinions or what some would call common sense," he said.

Thompson also said the board of adjustment did not act unreasonably, arbitrarily or capriciously.

In years past, the county was not as concerned with zoning and how conditional use permits were documented, said Kleindl. "We do such a better job of documenting now days," he said.

Peterson said he hopes Monson and the homeowners can get together to talk and work out arrangements regarding hours of operations and placement of the equipment that will lessen the impact.