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Appeals Court goes against Becker County, Osage Sportsman's Club

Allen Belt sights his rifle at the Osage Sportsman's Club. (Photo by Mattie Hjelseth/Detroit Lakes Tribune)

Score a win for Brian Winczewski, who lives next door to the Osage Sportman's Club and has successfully challenged the decision of the Becker County Board to grant the club a conditional use permit (CUP).

It's not clear how the county will respond. No decision was made by the county board after it met in closed sessions with its legal team on Tuesday, said County Administrator Jack Ingstad, although county staff did tour the Sportsman's Club site with the county's attorney after the meeting.

The county is unlikely to appeal to the Minnesota Supreme Court, Ingstad said in an interview prior to the closed session, and will likely start over with the conditional use permit application process as stipulated by the appeals court.

First, some history:

In October 2015, the club applied for an initial CUP for timber harvesting in order to increase the number of trap shooting lanes from one to four, add accompanying trap houses, rearrange the rifle range, add a parking area, and eventually add a new club house and warming house.

The club had already cleared trees for this purpose in the summer of 2015 and then discovered that a CUP was needed.

In October 2015, the club also bought an additional parcel of land to the north of the original parcel, planning to use the new parcel as a buffer for the expanded activities, including the club's use by the Park Rapids High School trapshooting team. In the summer 2016, the club also cleared additional trees from its newly acquired north parcel, and a portion of the new trapshooting lanes were built on that parcel.

A number of neighbors, including Winczewski, testified at the planning commission meeting against the expansion based on increased noise, safety concerns with ricocheting bullets, extended hours, and a possible nuisance and decrease in their property values.

The CUP was granted for tree clearing in conjunction with the expansion and reconfiguration of the club's shooting range in Osage Township.

But the appeals panel pointed out that even when considering a limited-purpose conditional use permit like the one for tree harvest, the county board must address the big picture: (1) the effect on surrounding property; (2) the effect on orderly, consistent development; (3) whether adequate facilities exist; (4) whether adequate parking exists; (5) whether a nuisance would be created; and (6) additional criteria for shoreland areas, including the prevention of pollution, limited visibility from public waters, and adequate utilities.

The county board found that each of these requirements was met. But in order for an appeals court to fully consider the county board's decision, the findings of the county board must be adequate for judicial review. The appeals court determined that the county had not taken a "hard look" at the problems involved.

Although the Becker County Board made specific findings addressing the CUP requirements, the court ruled that those findings are not legally sufficient to support its decision on the current record.

First, the zoning ordinance relating to a CUP in shoreland areas requires that adequate measures be taken to protect those areas, such as obtaining a permit from the MPCA and a stormwater pollution prevention plan, adherence to DNR forestry best management practices, and an erosion control and sedimentation plan approved by the county soil and water conservation district.

But the county board did not indicate whether its findings on this point relate to the tree harvesting that occurred in 2015, before the prior CUP was reversed, or the harvesting that occurred in 2016, which is the subject of this CUP.

"Any consideration of this issue is further complicated by the parties' disagreement on the acreage covered by the 2016 harvesting, which is also unclear from the record. And although the club alleges that the tree harvesting allowed reconfiguration of the shooting range, so that shooting no longer would occur over the adjoining lake, the record does not clearly specify the layout of the new shooting lanes, whether they would be extended, or whether they would merely be rearranged. The county board made no findings on the reconfiguration or how it would affect the board's consideration of the standards in the ordinance."

Also, no evidence was presented to the county board on whether the club's expansion complied with statutory noise standards for shooting ranges. Minnesota law provides specific noise standards for shooting ranges. The record contains no indication that noise measurements were taken in conformity with these standards.

A number of neighboring landowners who opposed the CUP alleged that noise levels from the shooting range had increased following the tree harvesting; Winczewski asserted that when high-powered rifles were shot on the property, he recorded decibel readings of 100 decibels.

"We recognize that general neighborhood opposition is an insufficient basis for permit denial," the appeals courts said in its decision. "But we have noted that the effects of noise from a shooting range may be relevant to a county board's decision to grant a CUP, even when the noise level would not exceed MPCA limits."

More specific noise measurements would help the county board in determining whether, after the trees were harvested, the statutory noise standards were exceeded, the court said.

Although the county board found that adequate noise-control measures had been taken, it addressed only measures taken to control noise from the act of tree clearing itself, not measures to control any increased noise that may occur from shooting activities once the CUP was approved. This narrow focus is legally insufficient to show that the county board took a "hard look" at the problem, as required for granting a CUP, the court said.

"For all of these reasons, we conclude that a remand is appropriate so that the parties may more fully develop the record and provide the county board with adequate evidence on which to base an informed decision on granting the CUP."

By reversing and remanding for reconsideration of application for CUP, the appeals panel said it will give all parties the opportunity to present evidence.

Winczewski was represented in the appeals case by James H. Perkett of Park Rapids. The county was represented by Becker County Attorney Tammy Merkins and Scott T. Anderson of Minneapolis. Osage Sportsmen's Club, Inc was represented by Matthew J. Enger of Park Rapids.