ELR Citation: ELR 20624
No(s). s. 92-3758, -3959 (8th Cir. Aug 30, 1993)

The court holds that county zoning officials did not violate a landowner's equal protection and substantive and procedural due process rights when they denied the landowner's application for a conditional use permit to "thinspread" on his property petroleum-contaminated soil generated by the city of Minneapolis. The court first holds that the county's requirement that the landowner obtain a conditional use permit for thinspreading did not violate the landowner's Fourteenth Amendment right to equal protection. Although such permits were not required for thinspreading prior to 1991, during the year in which he applied the landowner failed to show that similarly situated persons were not required to obtain a permit. In fact, the evidence he presented tends to prove that other parties who submitted thinspreading applications in 1991 were also required to obtain conditional use permits. The court holds that the county's 1991 reclassification of thinspreading from a permitted use to a conditional use was rationally based on the growing number of thinspreading applications and the public health issues associated with disposal of contaminated soils. The court next holds that the permit denial did not violate the landowner's substantive due process rights because he failed to demonstrate that the county's decision not to allow thinspreading on his property was "truly irrational." The court rejects the landowner's contention that the county cannot regulate thinspreading because Minneapolis has the power under state law to condemn land for that purpose. The court holds that even if Minneapolis were the real party in interest by virtue of its power of eminent domain and its need to dispose of the contaminated soil, this need does not outweigh the county's interest in regulating thinspreading for public health, welfare and safety reasons. Moreover, the city found another location for the thinspreading. The court holds that the state pollution control laws do not preclude the county's regulation of thinspreading, because the county's regulation does not conflict with, and is actually complementary to, state authority.

The court then holds that the permit denial did not violate the landowner's procedural due process rights, because the landowner received the required notice and an opportunity to be heard at the public hearing and county zoning board meeting considering the permit application. The landowner also failed to appeal the county's initial requirement of a conditional use permit. Turning to the landowners claims that county and municipal officials conspired against him to violate his constitutional rights and to deny him permission to thinspread, the court holds that the district court properly granted the defendants summary judgment. The landowner failed to allege specific facts that would create an issue of material fact as to the existence of a conspiracy between the county and the town to use unlawful means to achieve what the court finds is the lawful end of more heavily regulating thinspreading. Finally, the court holds that the district court did not abuse its discretion in denying the county's Federal Rule of Civil Procedure 11 motion for attorney fees.

Counsel for Appellant
James R. Anderson
1212 E. College Dr., Marshall MN 56258
(507) 537-1508

Counsel for Appellees
Scott T. Anderson
Ratwik, Roszak, Bergstrom & Maloney
300 Peavey Bldg.
730 Second Ave. S., Minneapolis MN 55402
(612) 339-0060

Before JOHN R. GIBSON, MAGILL, and MORRIS SHEPPARD ARNOLD, Circuit Judges.