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Arguments heard in Clay Dusters case

Oral arguments were heard on Jan. 16 at the Minnesota Court of Appeals "in the matter of the application of Park Rapids Clay Dusters, Inc., for a conditional use permit" (CUP) for its clay target shooting range near Huntersville, informally known as Wenthold vs. Wadena County.

Randy and Tammy Wenthold and Went North, LLC petitioned the court last April to overturn the CUP that the Wadena County Board of Commissioners granted to the trap shooting club.

Representing the Wentholds was attorney Mark Thieroff of Siegel Brill P.A., Minneapolis. Thieroff did not respond to the newspaper's requests for a comment.

Counsel for the county

Making oral arguments on behalf of Wadena County was attorney Kristen Nierengarten of Rupp, Anderson, Squires and Waldspurger P.A., Minneapolis.

Nierengarten's colleague Scott Anderson, who also represents the county, was present at the hearing.

"We thought the arguments went well," said Anderson. "The court was thoroughly versed in the facts of the case and seemed receptive to both sides, in terms of listening to what they had to say. As is often the case, they asked numerous questions of both sides."

Anderson said the three-judge panel "did not indicate, one way or the other, how they might rule. They took it under advisement, and they will rule in due course. They have 90 days to issue an opinion."

According to Anderson, the Wentholds argued against the CUP on two grounds: first, that the county board did not properly consider noise issues; second, that the board did not have discretion under county zoning ordinance to designate a rifle range as a conditional use in that district.

"They argued that this was an invalid exercise of their power," said Anderson. "In my opinion, the court seemed a little bit hostile to that argument, and under staunch questioning, the attorney for the Wentholds backed off a little bit."

As for the respondents' position, Anderson said, "We felt, all along, that the county has the power to make those kinds of decisions on a case-by-case basis because circumstances change. It's really hard to think of everything when you're drafting an ordinance. Rather than keep amending, amending, amending, the county obviously felt that it was better to respond on a case-by-case basis. This is a provision that is used quite heavily in the agricultural districts of the county to allow different types of uses to coexist with the other ag and recreational uses that go on in rural Wadena County."

Asked what he thinks will be the point on which the court's decision will turn, Anderson said, "I think it will turn on whether the court feels that the county took a hard look at the evidence, and had evidence to support its decision in the record."

As the attorneys for the county, he said, "We certainly believe that they did a very good job of looking at all of the issues, and that they had more than adequate evidence to support their position that the use should be allowed."

This took Anderson back to the Wentholds' concern about noise.

"I felt that the planning commission went above and beyond in this case in looking at the noise issues," he said. "They tabled the matter and had a special meeting where they went out and, using the type of shot that would be used, had people stationed around the area, shooting, and other people at listening points to determine what kind of noise they could hear. In my opinion, that shows a county that's taking a hard look at the issues that are raised. I think that's a significant fact."

Concurring counsel

Representing the Park Rapids Clay Dusters in the matter are Stephen Rufer, Matthew van Brueggen and Nicole Tabbut with the Pemberton Law Firm offices in Fergus Falls, Wadena, Park Rapids and Detroit Lakes.

Van Brueggen said that the trap shooting club's counsel concurred in the arguments made by Nierengarten at the Jan. 16 hearing.

"The arguments of Wadena County, I would argue, are identical to the issues in front of the Clay Dusters," he said, though he went into more detail about the issues the club had to address in its CUP application. For example, not only noise, but shot fall had to be considered. He pointed out that the range was designed according to National Rifle Association standards, which are widely accepted as best practices.

While the county's noise study found that the noise from the range did not violate any statute, Van Brueggen said, "the planning commission put the condition on the hours of operation, which we would expect to see. The conditions put on it should have addressed any issues that neighbors may have."

Most importantly, Van Brueggen said, "the DNR supports the range. The DNR stated that they will reroute trails if they feel that there is any risk. Moreover, the DNR provided the Clay Dusters with funds for the range. R.D. Offutt, which owns adjacent ag land, conveyed the land to our client for the specific purpose of making a shooting range."

As an adjacent landowner, he said, R.D.O. has raised no objection to the Clay Dusters range.

"We're asking the Court of Appeals to affirm what the county, the gatekeeper in this case, did," he said.