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Duininck, Inc v. Renville County Board of Commissioners

April 15, 2013

DUININCK, INC., RELATOR,
v.
RENVILLE COUNTY BOARD OF COMMISSIONERS, RESPONDENT.



Renville County Board of Commissioners

The opinion of the court was delivered by: Larkin, Judge

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012).

Affirmed

Considered and decided by Larkin, Presiding Judge; Halbrooks, Judge; and Rodenberg, Judge.

UNPUBLISHED OPINION LARKIN, Judge

In this certiorari appeal, relator challenges a decision by respondent to require preparation of an environmental assessment worksheet (EAW) in connection with relator's application for an interim use permit to allow gravel mining on 44 acres of land in Renville County. Relator argues that respondent's conclusion that an EAW is mandatory under Minn. R. 4410.4300 (2011) is legally erroneous, arbitrary, capricious, and not supported by substantial evidence. We affirm.

FACTS

Relator Duininck Inc. applied to respondent Renville County Board of Commissioners for an interim use permit (IUP) to allow gravel mining on approximately 44 acres of land in Renville County. Duininck had been mining at the site, known as the Molenaar Pit, since 2000, pursuant to conditional use permits (CUPs) issued by the county for a 39-acre area. With its 2012 application for an IUP, which the county now requires instead of a CUP for gravel mining, Duininck sought to expand the site by approximately five acres to a total of approximately 44 acres.

The county's director of environment and community development, Mark Erickson, reviewed Duininck's IUP application, and concluded that, because the application encompassed more than 40 acres, an EAW might be mandatory under Minnesota Rules. Erickson referred the matter to the county board-the responsible governmental unit (RGU) under the rules-for its determination of whether to require an EAW, placing the application on the agenda for the board's next meeting. Before the meeting, Duininck filed a second IUP application encompassing only the originally permitted 39 acres, to ensure that it would be able to continue existing mining operations if its CUP expired during the environmental-review process. Duininck intended to pursue the 44-acre application unless the board decided to require an EAW for that application, in which case it would pursue the 39-acre application.

At the meeting, the board voted to require an EAW in connection with the 44-acre application. The meeting was not recorded, and the board did not issue written findings or an order. But the board's minutes reflect that it unanimously passed a motion "to require an Environmental Assessment Worksheet if the applicant goes forward with the application for expansion of the Molenaar Pit to 44 acres. (In accordance with Minnesota Rules 4410, an expansion over 40 acres would require an EAW.)" Duininck withdrew the 44-acre application after the meeting, and the county subsequently reviewed and granted the 39-acre application.

Duininck appeals the board's decision to require an EAW in connection with the 44-acre application.

DECISION

"A person aggrieved by a final decision on the need for an environmental assessment worksheet . . . is entitled to judicial review of the decision." Minn. Stat. § 116D.04, subd. 10 (2012). Since a 2011 legislative amendment, challenges to EAW determinations have been properly asserted directly to this court by petition for writ of certiorari. Id.; 2011 Minn. Laws ch. 4, § 8, at 60. This court reviews an EAW determination to determine whether it is unreasonable, arbitrary or capricious, made under an erroneous theory of law, or unsupported by substantial evidence. Watab Twp. Citizen Alliance v. Benton Cnty. Bd. of Comm'rs, 728 N.W.2d 82, 89 (Minn. App. 2007), review denied (Minn. May 15, 2007).

The necessity for an EAW is governed by rules adopted by the Minnesota Environmental Quality Board (EQB). See Minn. Stat. ยง 116D.04, subd. 2a(a) (2012) (directing board to establish categories for which EAW's are and are not required). Minnesota Rule 4410.4300 describes the types of projects for which an EAW must be prepared and the RGU charged with completing the EAW. Preparation of an EAW is mandatory for projects that meet or exceed the thresholds identified in rule 4410.4300, unless an environmental impact statement (EIS) is required by rule 4410.4400. Minn. R. 4410.4300, subp. 1. The parties agree that the relevant threshold here is set forth in Minn. R. 4410.4300, subp. 12.B., which requires preparation of an EAW in connection with a project for the "development of a facility ...


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