author: RANDALL, Judge.

text:
    In the Matter of an Application by Harvey BLOCK and Gary McDuffee for a Conditional Use Permit.
    Nos. A06-387, A06-518.
    Court of Appeals of Minnesota.
    Feb. 6, 2007.

      Marshall H. Tanick, Teresa J. Ayling, Beth Erickson, Mansfield, Tanick & Cohen, P.A., Minneapolis, MN, for relators Roger E. Nelson, et al.
    Richard D. Snyder, Sten-Erik Hoidal, Fredrikson & Byron, P.A., Minneapolis, MN and Timothy J. Shields, Richfield, MN, for relator Minnesota Federated Humane Societies.
    Conrad Freeberg, Morrison County Attorney, Little Falls, MN and Michael T. Rengel, Pemberton, Sorlie, Rufer & Kershner, P.L.L.P., Fergus Falls, MN, for respondent Morrison County.
    Konstandinos Nicklow, Meshbesher & Spence, Ltd., Minneapolis, MN and Douglas P. Anderson, Rosenmeier, Anderson & Vogel, Little Falls, MN, for respondent Gary McDuffee.
    Considered and decided by HALBROOKS, Presiding Judge; RANDALL, Judge; and STONEBURNER, Judge.
   OPINION

RANDALL, Judge.

In these consolidated certiorari appeals, relators Roger and Deborah Nelson and Jeremy and Sarah Dickman (the Nelson relators) and the Minnesota Federated Humane Societies (MFHS) seek review of respondent Morrison County Board of Commissioners’ decision to grant a conditional use permit (CUP) to respondent Gary McDuffee to operate a dog-breeding facility. The Nelson relators argue that the county board’s issuance of the CUP was arbitrary, capricious, or unreasonable; that the county board violated county ordinances and likewise was arbitrary, capricious, or unreasonable when it sua sponte modified the CUP; and that they were entitled to a new hearing based on new evidence. MFHS contends that the inclusion of a debarking condition was arbitrary and capricious, and that the board acted arbitrarily by failing to consider whether a large number of dogs could be humanely kept at the facility. We reverse and remand.

FACTS

In late 2005, Gary McDuffee was interested in purchasing 40 acres of land from Harvey Block in Morrison County, Minnesota, where he planned to relocate his professional dog-breeding facility. The land is zoned agricultural, and dog kennels are a permitted use with a conditional use permit (CUP).

On November 8, 2005, Block and McDuffee filed a request for a CUP. As part of the application, McDuffee completed the conditional use criteria questions, which track the criteria for granting CUPs set out in the Morrison County land use ordinance. Morrison County, Minn., Ordinances 507.2. McDuffee indicated that he planned to relocate his professional dog-breeding business from elsewhere in Morrison County to the land at issue, where he planned to raise and sell puppies to be sold in pet stores nationwide. He estimated that he would have two to three full-time employees. A professional contractor would construct the building. He noted that he had operated dog kennels elsewhere in Morrison County under a CUP for the past 24 years and that his business would be licensed and inspected by the United States Department of Agriculture (USDA). He indicated that all adult dogs would be “debarked” to alleviate the noise.

McDuffee also submitted several letters in support of his CUP application. First, he submitted four letters from neighbors of his previous kennels who spoke well of him and his business. He also submitted four letters from people who would be his neighbors at the new location who did not object to his proposal. A letter from his accountant indicated that his business would be well run and profitable. A letter from his long-time veterinarian, Dr. Charles Extrand, indicated that McDuf-fee’s previous facilities were well run and also addressed the issue of debarking.

Noise generated from a dog kennel can be a very serious environmental factor and could affect surrounding inhabitants. With this in mind, Gary has contacted me about doing a debarking procedure to lower the noise volume. Contrary to what animal activists claim, this procedure does not “silence” a dog but rather lowers the high pitch[ed] sounds.

The Morrison County Planning Commission published notice of the public hearing on December 4, 2005, and mailed a notice to the ten closest owners. The notice invited participation at the hearing and also invited the submission of written comments. Planning commission staff prepared an opinion/recommendation for the hearing before the planning commission as follows:

The applicant requires a conditional use permit to operate a dog kennel. The applicant operated a kennel in Cushing Township which was approved in 2001. The proposed kennel would breed and raise dogs for sale. A large housing barn is being proposed on the site. The applicant did not indicate the number of animals that are being proposed at the site. The Cushing site had a maximum cap of 800 adult dogs. There are neighbors within 900-1,000 feet from this proposed site. We have also received concerns from neighbors regarding this proposal. It is our understanding the animals are mostly confined to the barn and there is minimal exposure to the outside. It is indicated that those dogs outside will be debarked. A septic system is being proposed by the applicant. There appears to be tillable land for manure application. The property also has some wetlands. The ordinance does not have any specific standards for kennels. The conditional use criteria questions must be satisfied.

On December 9, 2005, relator Roger Nelson, who is one of the neighbors who was notified, filed a citizens’ petition asking the township supervisors and county commissioners to vote against the proposed CUP for the dog kennel and requesting that an environmental assessment worksheet (EAW) be completed. In his letter to the Minnesota Environmental Quality Board (MEQB), Nelson referred to the fact that the property is bordered on one side by a stream leading to several lakes and on another side by a wildlife pond and pool. In a December 14 communication to the MEQB, Nelson indicated that the U.S. Fish and Wildlife Service expressed concerns that $15,000 had been spent in that area to benefit the natural habitat and Nelson indicated the dog facility may have a huge impact through noise, pollution, and waste disposal or runoff.

On December 14, the district manager for the Morrison County Soil and Water Conservation District sent a letter to the MEQB indicating that a 600-dog structure would produce a sizable amount of animal waste. Consequently, the manager found it appropriate that soil tests and manure testing be required, as in situations in which an agricultural producer is expanding or applying for a new or expanded feedlot permit. She also indicated that there would be questions as to how long the adjoining fields could sustain the dog feces application, the environmental effects on the shallow water table over a prolonged period of time, and the setback from water features. On December 20, the MEQB determined that Morrison County was the appropriate governmental unit to decide whether to require an EAW for the proposed dog-breeding facility.

The Morrison County Planning Commission hearing at which the CUP application was addressed was held on December 19, 2005. At the meeting, MeDuffee said he wanted a 600-dog cap for adult breeding dogs. He expected they would have about 500 puppies in the first year and more in years later. The 600 limit applies only to breeding dogs. No cap was proposed for the number of puppies and nonbreeding dogs in the CUP. MeDuffee said that the dogs to be bred would be Cocker Spaniel size or smaller, averaging ten pounds. Any adult dogs allowed outside would be debarked. Regarding dog waste, MeDuf-fee said that he planned to rake it and stockpile it on a slab in the winter. In the spring, a neighbor would spread it on his fields following USDA guidelines.

Dr. Extrand, McDuffee’s long-term veterinarian, stated that McDuffee’s kennels had always been in compliance with USDA and state regulations. He testified that he has debarked about 10,000 dogs, in an operation in which the dogs’ vocal cords are “removed” while they are under anesthesia. One of McDuffee’s kennel employees said that MeDuffee gives great love and care to the dogs.

The planning commission heard testimony in opposition to the CUP. A Belle Prairie Township supervisor opposed the request, citing major complaints that the township had received regarding an existing kennel. One neighbor expressed concerns and opposed the request. Relator Sarah Dickman, who lives across the road, expressed concerns regarding noise and odor. She added that she is with the Animal Humane Society, which has received many complaints about the Cushing kennel site, including reports of injured and sick animals and bad living conditions. Relator Roger Nelson, who lives about 100 feet away from the property line, testified that he was very concerned about the environmental effects.

The planning commission then addressed the seven criteria for the CUP, using a checklist, with eight members voting in favor of the CUP and one abstaining. The planning commission also imposed three conditions: that a privacy fence be installed on one side, that there be a cap of 600 adult breeding dogs, and that all dogs kept outside be debarked.

On January 10, 2006, the county board of commissioners held a meeting to consider the citizens’ petition for an EAW and to review the planning commission’s recommendation that the CUP be granted. The board unanimously decided that an EAW was not needed for the proposed dog kennel. Later, the board considered the CUP for the dog kennel. McDuffee was in attendance and in response to questions explained that there would be no more than 600 adult breeding dogs, including male and female, and these would be debarked. He explained that puppies would not go outside. The board approved the CUP subject to the three conditions proposed by the planning commission.

After the CUP was issued to McDuffee and after the formal record was closed, a large volume of material, most of it in opposition to the issuance of the CUP, was sent to the county. The county board took note of that material and pursuant to that volume of criticism, the board directed the county administrator and the county attorney to write to McDuffee. In addition, relator Minnesota Federated Humane Societies (MFHS) sent a letter of concern and requested copies of staff reports, the application, and the permit, which were sent.

At the February 7, 2006 county board meeting, staff reviewed the process that was followed in approving the CUP. Staff reported on recent developments, including information that McDuffee had violated USDA license standards on the dog kennel that he previously owned. The county administrator indicated that while this information would have been very helpful, the public hearing phase of the process had been designed to receive this kind of information. He noted that the courts would examine the information that the board had at the time the decision was made, not afterwards. He pointed out that the county could have some liability to McDuffee, who by then had purchased the property, if the county board attempted to reverse its decision on the CUP.

The administrator went on to explain that while previously kennels were treated in a similar manner as hog or chicken feedlots, all have since learned a great deal about commercial dog-breeding kennels. Some feel that dogs, which are companion animals, should be treated differently. One unidentified speaker stated he had received letters originating from all 50 states and overseas. The staff recommended that the board adopt a moratorium for one year on CUPs for commercial dog-breeding kennels. The board adopted that recommendation.

The county administrator and county attorney wrote a letter to McDuffee on February 7, 2006, stating that since the earlier vote, the county board had learned that surgical debarking is overwhelmingly disfavored within the veterinary community and that many allege it is inhumane. Consequently, they encouraged the use of barking (shock) collars instead of surgical debarking. They then reminded McDuf-fee that he must maintain a USDA license and comply with all license requirements and warned that if he did not, the county board would reconsider the CUP.

The Nelson relators and MFHS bring a certiorari appeal from the board’s decision to grant the CUP. The Nelson relators also challenge the February 7, 2006 letter. McDuffee moves to strike a portion of the Nelson relators’ appendix and brief.

ISSUES

I. Does the Minnesota Federated Humane Societies have standing to bring its own certiorari appeal?

II. Should respondent McDuffee’s motion to strike portions of the Nelson rela-tors’ appendix and brief be granted?

III. Was the county board’s decision to issue the conditional use permit arbitrary, capricious, or unreasonable?

IV. Did the February 7, 2006 county board letter to McDuffee constitute an amendment to the conditional use permit, which requires compliance with the procedures required for issuance of a new conditional use permit?

V. Did the county board act unreasonably, arbitrarily, or capriciously in refusing to grant a new hearing on the conditional use permit?

ANALYSIS

I.

We first address whether relator Minnesota Federated Humane Societies (MFHS), which filed a certiorari appeal and a brief as if it were a full party to this action, has standing to participate in this certiorari appeal. Although none of the parties raised the issue, standing is essential to a court’s exercise of jurisdiction and may be raised on the court’s own motion. Annandale Advocate v. City of Annandale, 435 N.W.2d 24, 27 (Minn.1989). A party has standing if it suffers an injury in fact or if the legislature has conferred standing. State by Humphrey v. Philip Morris Inc., 551 N.W.2d 490, 493 (Minn.1996); In re Pappas Senate Comm., 488 N.W.2d 795, 797 (Minn.1992). The entity seeking standing must have “a sufficient stake in a justiciable controversy to seek relief from a court,” and the goal of this requirement “is to ensure that issues before the courts will be ‘vigorously and adequately presented.’ ” Humphrey, 551 N.W.2d at 493 (citation omitted).

MFHS argues that its standing is conferred under certain provisions in the prevention-of-cruelty-to-animals statutes. Minn.Stat. 343.01-.40 (2004). MFHS exists through legislative enactment. Minn. Stat. 343.01, subd. 1. Its purpose is “to assist in the enforcement of the laws for the prevention of wrongs to animals; ... to aid [district and county humane] societies and agents in the enforcement of the laws for the prevention of wrongs to animals which may now or hereafter exist, and to promote the growth of education and sentiment favorable to the protection of animals.” Minn.Stat. 343.06.

The conditional use permit (CUP) at issue in this case specifically authorizes respondent Gary McDuffee to keep up to 600 adult breeding dogs at his kennel, plus an unlimited number of puppies and non-breeding dogs, and it requires debarking of all dogs that have access to the outdoors. McDuffee’s veterinarian testified at the planning committee meeting that debarking is a surgical procedure in which the dogs’ vocal cords are removed. Relator Sarah Diekman indicated that another kennel operated by McDuffee had generated complaints concerning sick and injured animals and adverse living conditions for the animals. Further, the February 7, 2006 letter sent to McDuffee indicated that the county board realized that it had not had the benefit of documentation in opposition to the debarking procedure and belatedly made a statement opposing surgical debarking. In light of this information, it is apparent that issues of animal welfare must be addressed. MFHS, pursuant to its statutory purpose, is the party best equipped to provide the county board with relevant evidence on the debarking procedure and on animal cruelty concerns that will arise out by operation of a kennel containing up to 600 breeding dogs and an unlimited number of puppies and non-breeding dogs. Based on the prevention-of-eruelty-to-animals statute and the fact that MFHS will ensure that the issues of alleged animal cruelty will be thoroughly discussed, MFHS has standing to bring its own certiorari appeal.

II.

We next address McDuffee’s motion to strike a portion of the appendix and brief filed by relators Roger Nelson, et al. (the Nelson relators).

A EAW documents

McDuffee first moves to strike all documents contained in the Nelson relators’ appendix that were considered by the board in deciding the need for an environmental assessment worksheet (EAW), as well as references to the EAW in their brief.

The county board considered the CUP application and the citizens’ petition to require an EAW for the CUP at the same meeting, and documents relating to both are contained in the record relayed to this court for this certiorari appeal. Papers filed, exhibits, and transcripts are part of the record in a certiorari appeal. Minn. R. Civ.App. P. 110.01; see Minn. R. Civ.App. P. 115.04, subd. 1 (providing that generally, rules 110 and 111 apply to cer-tiorari appeals). Therefore, these documents are part of the record.

McDuffee, however, argues that the Nelson relators are seeking review- of the EAW decision in this proceeding. EAW decisions are renewable through a declaratory judgment action in district court. Minn.Stat. 116D.04, subd. 10 (2004); Minn. R. 4410.0400, subp. 4 (2005). The Nelson relators advise that they are seeking review of the EAW decision in district court and state they are not asking this court to review the EAW decision (at this time) in this certiorari appeal. Instead, the Nelson relators argue that the documents were relevant to environmental matters considered in the CUP determination. First, the board was to consider the “effect of the proposed use upon the health, safety, morals, and general welfare of occupants of surrounding land and water bodies.” Morrison County, Minn., Ordinances 507.2(a). Further, one of the criteria for granting a CUP is whether the proposed use is “reasonably related to the existing land use and the environment.” Id. 507.2(a)(4). McDuffee contends that to the extent the environmental issues in the petition for an EAW and the application for the CUP overlap, the EAW preempts the county ordinance. See Blue Earth County Pork Producers, Inc. v. County of Blue Earth, 558 N.W.2d 25, 27-29 (Minn.App.1997) (holding that state law did not preempt county from enacting feedlot ordinance), review denied (Minn. Mar. 26, 1997).

We decline to strike the documents relating to the EAW that are a part of the record. Finally, we decline to address a claim of preemption raised for the first time in a reply memorandum on a motion to strike and not addressed in the appeal on the merits. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988) (holding that reviewing court generally will consider only issues raised and presented to trial court); see also Brink v. Smith Cos. Constr., 703 N.W.2d 871, 879 (Minn.App.2005) (holding that issue appellant raised for first time on appeal in reply brief will generally not -be considered), review denied (Minn. Dec. 21, 2005).

B. Documents not in the record

Next, McDuffee contends that this court should strike a number of documents in the Nelson relators’ brief because they are not contained in the record below.

As discussed above, the record in a certiorari appeal consists of the papers filed, the exhibits, and transcripts. Minn. R. Civ.App. P. 110.01. “An appellate court may not base its decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence below.” Thiele, 425 N.W.2d at 582-83. “Typically, when a quasi-judicial body such as a county board denies a permit, the reviewing court ‘should, of course, confine itself at all times to the facts and circumstances developed before that body.’ ” In re Livingood, 594 N.W.2d 889, 893 n. 3 (Minn.1999). An exception to this rule arises when uncon-troverted documentary evidence of a conclusive nature supports the decision below, in which case the reviewing court has the discretion to consider such evidence. Id. at 895-96. But when evidence that is inconclusive on a disputed issue is offered to support reversal rather than affirmance, consideration of such evidence is never allowed. Plowman v. Copeland, Buhl & Co., 261 N.W.2d 581, 584 (Minn.1977).

McDuffee moves to strike documents in the Nelson relators’ appendix and portions of the brief addressing the documents that relate to another dog-breeding facility that he had operated with his ex-wife, but that are not in the record below. McDuffee also moves to strike an undated memo that he apparently authored, contained in relators’ appendix and referred to in their brief, indicating the number of employees in his proposed facility. Rela-tors do not address these arguments. We grant the motion to strike as to these documents and references that are not part of the record.

McDuffee next moves to strike articles copied from Internet sites that address environmental and health problems arising from contact with dog feces and information relating to debarking and shock collars that the Nelson relators include in their appendix and refer to in their brief, but that are not part of the record.

Relators contend that these documents are properly before this court for the first time on appeal because this court can take judicial notice of “the important public health information from reliable sources concerning the public health risk of pathogens present in dog urine and feces.” Re-lators point out that the supreme court has taken judicial notice that the interests of public health require that barbers be aware that disease could spread through the uncleanliness of barbers. State v. Zeno, 79 Minn. 80, 84, 81 N.W. 748, 749 (1900) (upholding constitutionality of law requiring license for barber).

“An appellate court may take judicial notice of a fact for the first time on appeal.” Smisek v. Comm’r of Pub. Safety, 400 N.W.2d 766, 768 (Minn.App.1987) (taking judicial notice of trial court order in related proceeding). “A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Minn. R. Evid. 201(b) (applicable to civil cases). But while judicial or official notice may be taken of general matters of common knowledge, it cannot be constitutionally used as a substitute for adjudicating specific facts without a hearing. In re Hibbing Taconite Co., 431 N.W.2d 885, 891-92 (Minn.App.1988) (addressing concept in agency proceedings).

The Nelson relators are asking more than that this court take judicial notice generally of public health risks from animal waste. Instead, they are asking this court to consider many specific documents that were not before the county board, and use those documents to reverse the county board’s decision on a disputed matter. That we will not do. See Plowman, 261 N.W.2d at 584.

Relators compare their information copied from the Internet to learned treatises, which may be “established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice” under Minn. R. Evid. 803(18) and are not hearsay in court proceedings. See generally Sorensen v. Maski, 361 N.W.2d 498, 500-01 (Minn.App.1985) (upholding district court decision sustaining objection to cross-examination of expert using statements from an accident reconstructionist treatise, when the expert did not recognize the treatise as authoritative and when there was no attempt to establish reliability of the treatise through proponent’s own expert witness). Even though some of the Internet sources the Nelson relators cite may be recognizable, no explanation has been provided as to how the sources cited obtained the information they put on the Internet and whether each “sponsors, endorses, collects, or simply provides the information on the web sites.” Fenner v. Suthers, 194 F.Supp.2d 1146, 1149 (D.Colo.2002). Information from websites may be modified at will by webmasters or others, and there is no assurance that the cite to the website provided in the appendix is the same viewed by a visitor to the website today. Id. at 1148-49. We grant the motion to strike as to this material.

Finally, McDuffee moves to strike the extensive correspondence, primarily consisting of e-mails from the public to the county after the CUP decision was made. The Nelson relators contend that some of the correspondence was sent to the county before its February 7, 2006 meeting and letter and was considered by the county. Very few of these documents appear in the record that was sent to this court. All counsel received notice of the contents of the record that was sent to this court. Had they felt it was incomplete, they could have moved to correct the omissions in the record pursuant to Minn. R. CivApp. P. 110.05, but no such motion was made. On material not part of the record, McDuffee’s motion to strike is granted.

III.

The challenges to the CUP on the merits will now be addressed. Quasi-judicial decisions by a county board regarding a CUP are reviewable by certiora-ri to this court. Interstate Power Co. v. Nobles County Bd. of Commrs., 617 N.W.2d 566, 574 & n. 5 (Minn.2000); Picha v. County of McLeod, 634 N.W.2d 739, 741 (Minn.App.2001). The standard of review is a deferential one, as counties have wide latitude in making decisions about special use permits. Schwardt v. County of Watonwan, 656 N.W.2d 383, 386 (Minn.2003). Further, we give more deference to a decision approving a CUP than to a decision denying one. Id. at 389 n. 4. An appellate court will “review a county’s decision to approve a CUP independently to see whether there was a reasonable basis for the decision, or whether the county acted unreasonably, arbitrarily, or capriciously.” Id. at 386. For a challenge to a CUP to succeed, there must be a showing “that the proposal did not meet one of the standards set out in the Ordinance and that the grant of the CUP was an abuse of discretion.” Id. at 387 (footnote omitted).

An agency’s decision is arbitrary or capricious if the agency relied on factors the legislature never intended it to consider, if it entirely failed to consider an important aspect of the problem, if it offered an explanation for the decision that runs counter to the evidence, or if the decision is so implausible that it could not be ascribed to a difference in view or the result of agency expertise.

Pope County Mothers v. Minn. Pollution Control Agency, 594 N.W.2d 233, 236 (Minn.App.1999).

Morrison County is authorized to carry out planning and zoning activities under Minn.Stat. 394.21, subd. 1 (2004). Boards may by ordinance designate certain kinds of development as “conditional uses” under zoning regulations. Id. 394.301, subd. 1 (2004). Conditional use is defined as

a land use ... as defined by ordinance that would not be appropriate generally but may be allowed with appropriate restrictions as provided by official controls upon a finding that (1) certain conditions as detailed in the zoning ordinance exist, and (2) the use ... conforms to the comprehensive land use plan of the county and (3) is compatible with the existing neighborhood.

Id. 394.22, subd. 7 (2004). “Conditional uses may be approved upon a showing by an applicant that standards and criteria stated in the ordinance will be satisfied.” Id. 394.301, subd. 1. The board may require additional conditions. Id., subd. 2 (2004).

The land at issue is zoned agricultural. A kennel is a permitted use on agricultural land but requires a CUP. Morrison County, Minn., Ordinances 801. A kennel is defined as: “Any structure or premises on which four (4) or more dogs are kept for sale, breeding, profit or similar uses.” Id. 400. The ordinance sets out the criteria for granting a CUP and requires consideration of seven factors. Id. 507.2. Only three of those factors, as^well as one condition, are at issue, and they will be addressed below.

1. Traffic problems

The Nelson relators first contend that the board erroneously determined that McDuffee met the requirement that the proposed use “will not create an excessive burden on existing parks, schools, public roadways and other public facilities and utilities which serve or are proposed to serve the area.” Morrison County, Minn., Ordinance 507.2(a)(1) (emphasis added). With regard to this factor, McDuffee’s application stated that with two to three full-time employees, there should not be an excess burden on the existing roads. The minutes of the meeting before the planning commission do not reveal any discussion about roads or traffic. The planning commission recommended finding that “the requested use will not create an unreasonably excessive burden on the existing roads or other utilities.” The board adopted this finding.

The Nelson relators first contend that the board’s decision was unreasonable, arbitrary, and capricious as to the finding on the burden on the road. They assert that if McDuffee followed the applicable state and federal laws for the care required for 600 breeding dogs and an unspecified number of puppies, a minimum of 50 employees would be required. They contend the board failed to consider the impact of these employees using the roadways and failed to make additional findings as to traffic, parking, or congestion.

Respondents contend that relators waived this issue because it was not raised below. Appellate courts will not address issues or evidence raised for the first time on appeal. Thiele, 425 N.W.2d at 582-83; Graham v. Itasca County Planning Comm’n, 601 N.W.2d 461, 468 (Minn.App.1999) (applying Thiele to issues raised for the first time on appeal of zoning decision). Relators contend that relator Sara Dickmann raised this issue when she testified as to her objections to the kennels based on her concerns regarding “noise and odor.” Taking the record as a whole, we do not find an explicit challenge regarding traffic concerns.

A decision-maker must make findings or other explanations of its decision that are adequate for judicial review. Sunrise Lake Ass’n, Inc. v. Chisago County Bd. of Comm’rs, 633 N.W.2d 59, 61 (Minn.App.2001). A board’s use of a checklist may be “a sufficient expression of the board’s conclusions that the conditions for approval have been met.” Schwardt, 656 N.W.2d at 389. Findings as to adverse traffic problems caused by a proposed use must be supported by independent analysis or facts in the record. Yang v. County of Carver, 660 N.W.2d 828, 835 (Minn.App.2003) (reversing denial of CUP in part because no basis in record for board determination that excessive traffic would be created by proposed use).

Here, McDuffee explained his proposed number of employees and expressed his belief that those few employees would not create a burden on existing roads. Rela-tors’ argument is based on speculation, and that cannot support a determination that the board’s finding was unreasonable, arbitrary, or capricious.

2. Noise

The Nelson relators next contend that the board made arbitrary and capricious findings regarding noise and failed to consider the noise that would be created if McDuffee did not use debarking or shock collars on the outside dogs. Under the general provisions relating to a CUP, the board must consider the effect of the proposed use on the “health, safety, morals and general welfare of the occupants of surrounding lands and water bodies.” Morrison County, Minn., Ordinance 507.2(a). One of the findings that must be made is that “[e]xisting occupants of nearby structures will not be adversely affected because of curtailment of customer trade brought about by intrusion of noise, odor, glare or general unsightliness.” Id. 507.2(a)(7) (emphasis added).

In McDuffee’s initial application for the CUP, he stated as to this factor that all adult dogs will be debarked to alleviate noise. At the hearing, a veterinarian who had provided veterinary services for McDuffee for some 24 years, Charles Ex-trand, testified that he has debarked perhaps 10,000 dogs. He explained that by removing dogs’ vocal cords using a surgical process while the dogs are under anesthesia, they will no longer make high-pitched barks, although they can still make noise and communicate. As discussed earlier, relator Sara Dickmann testified about her concern about the noise. In opposition, one of McDuffee’s former neighbors wrote that the noise level was nominal when McDuffee owned a nearby kennel. Another wrote that the “short term barking at feeding time certainly was no more disruptive to our lives than were ‘hot-rodding’ vehicle drivers, snowmobilers, and/or four-wheelers.”

Based on this evidence, the planning commission recommended the following finding, which the board adopted: “The requested use will not create an unreasonably adverse effect because of noise, odor, glare or general unsightliness for near-by property owners.” This is supported by the record.

Then, the board adopted the following condition as well: “All dogs which have access to the outside be debarked.” (Emphasis added). It is this imperative condition that causes concern.

MFHS argues that where the governing body has not taken a “hard look” at the problems involved, this court should not defer to its decision. See Citizens Advocating Responsible Dev. v. Kandiyohi County Bd. of Comm’rs, 713 N.W.2d 817, 838 (Minn.2006) (reversing and remanding where there was insufficient evidence in the record to show that county took a “hard look” at one of the required criteria). MFHS properly asserts that the board’s decision is arbitrary and subject to reversal where, as here, a governing body failed to consider an important aspect of the problem. Minn. Ctr. for Envtl. Advocacy v. City of St. Paul Park, 711 N.W.2d 526, 534 (Minn.App.2006). The MFHS contends that the board’s cursory analysis was not a “hard look” because it failed to take into account Minnesota policy and statutes concerning cruel and inhumane treatment towards animals and it failed to consider the ramifications of its decision to impose the condition of debarking on outside dogs. See generally Minn.Stat. 343.01-40.

We agree and, thus, remand. Proof of lack of information on this issue is contained in the February 7, 2006 letter that the county administrator and county attorney sent to McDuffee. The letter stated: “First, we are writing to clarify the county’s interpretation of one of the conditions placed on [the] recently issued Conditional Use Permit....” The county board indicated that it had learned since the CUP was issued that, “surgical debarking is overwhelmingly disfavored within the veterinary community and many allege that it is inhumane. It is also a permanent and irreversible approach to the problem of noise.”

McDuffee claims caselaw supports his argument that severing a dog’s vocal cords is not permanent. Our answer is, McDuf-fee will be entitled to produce evidence on this point on remand.

3. Environment

The final challenge by relators to the January 10 decision concerns the fourth criterion for granting a CUP, that the use, in the opinion of the planning commission, “is reasonably related to the existing land use and the environment.” Morrison County, Minn., Ordinance 507.2(a)(4). These issues relate to McDuffee’s proposal that the dog waste be spread on his property and that of a neighboring property. McDuffee contends that this is relevant only to the petition for an EAW, which was denied by the county board and which is subject to review in a declaratory judgment action in district court, and not to the CUP. See Minn.Stat. 116D.04, subd. 10 (providing for review of EAW decisions in district court).

While it is clear that this court does not have jurisdiction, at this point, to address the challenge to the EAW, one criterion to consider in granting a CUP is whether the use is reasonably related to the existing land use and the environment.

The county addresses this issue in detail. The county explains that discussion was held at the meetings regarding the manure practices that would be utilized. This consisted of stockpiling the manure during the winter months and applying the manure on nearby agricultural fields during the summer, making the requested use reasonably related to the existing land use and the environment.

We do not base our decision solely on environmental factors, which are the focus of the EAW litigation. Nonetheless, the potential environmental effects of the fácility cannot be ignored, and are in the record. A letter by the district manager of the Morrison Soil and Water Conservation District to the environmental quality board (regarding the CUP application) stated:

A 600 dog structure will produce a sizable amount of animal waste as well. The proposed site has a small approximately 10 acre field, and there is a type 3 wetland on one side, and a county ditch on the other. The soils mapping on the field indicates the presence of Isan and Meehan soils, both wetter soils, with poor drainage and rapid permeability.
It does seem appropriate that soils tests and manure testing would be required similar to livestock situations. The question of how long the field can sustain dog feces application and what the environmental effects on the shallow water table might be over a prolonged period of time seems valid. Also, the setback from the water features should be addressed.
This office does not have the expertise to answer those questions but surely the information is available from some source and should be applied to this permit request. With livestock operations, the burden of showing an environmentally safe operation is placed on the applicant.

IV.

Next, we address the Nelson rela-tors’ argument that the letter of February 7, 2006, to McDuffee constituted a sua sponte modification of the CUP that violated county ordinances and was arbitrary, capricious, and unreasonable.

The county board argues that the record closed on January 10, 2007, and that material received afterward is not part of the record and should be stricken. Pursuant to the county’s motion, some of the materials have been stricken. However, the fact that materials critical of the board’s decision were later received is part of the record, and the county board opened the door to our review because, after the record closed, the county specifically took note of later received materials, and relied on them in formulating the February 7, 2006 letter. Pursuant to the county board’s direction, the county administrator and the county attorney wrote the following February 7, 2006 letter to McDuffee. The letter reads:

First, we are writing to clarify the county’s interpretation of one of the conditions placed on your most recently issued Conditional Use Permit regarding “debarking” the dogs. As you have previously mentioned, the number of dogs that this would apply to is low. Consistent with our previous understanding, we have indicated that it is only a concern for those that have outside access. We want to take this opportunity to further clarify that we believe this permit condition can best be met with the use of barking collars instead of surgical debarking. A barking collar is a collar that delivers a mild shock whenever the dog barks to condition it to bark less. We have learned that surgical debarking is overwhelmingly disfavored within the veterinary community and many allege that it is inhumane. It is also a permanent and irreversible approach to the problem of noise. As such, we encourage the use of barking collars in place of surgical debarking. While we realize that this is ultimately your choice, not ours, we will not defend your use of the surgical practice to any or all inquirers.
Second, in light of recent disclosures concerning citations at the Happy Trails kennel by USDA Inspectors during the time period that you were running it with your ex-wife, Wanda, we feel compelled to remind you that at your new location you also must maintain a USDA license and be in compliance with your license requirements at all times. Should Morrison County at any time be made aware that that is not the case, we will request that the County Board reconsider your Conditional Use Permit through the normal public process.

The Nelson relators contend that that February 7, 2006 letter from the county to McDuffee improperly altered the CUP without compliance with the procedures needed for amending a CUP. Under Morrison County, Minn., Ordinances 507.7, certain changes require an amended CUP, which can be obtained only by following all of the procedures required for a new CUP application. These changes include

structural alterations, enlargement, intensification of use, or similar change not specifically permitted by the conditional use permit issued, shall require an amended conditional use permit and all procedures and a new permit fee shall apply as if a new permit were being issued including information on the use, location and conditions imposed by the Planning Commission, time limits, review dates, and such other information as may be appropriate.

Id.

This February 7 letter is definitive. It shows the county board realized (pursuant to after-acquired materials) that it did not have the benefit of thorough research and documentation when they first discussed the “debarking” issue. In view of that late-arriving information, we conclude the county “informally amended the CUP” and made a statement against debarking. Rather than reverse and remand on the narrow point of procedurally amending a CUP, we recognize the inherent authority of an agency to reconsider a decision. In re Class A License Application of North Metro Harness, Inc., 711 N.W.2d 129, 136 (Minn.App.2006), review denied (Minn. June 20, 2006). The fairest result is to remand this matter to the county board to give the board a chance to reconsider the issuance of a CUP. On remand, the board is instructed to allow all parties herein the opportunity to present their evidence.

y.

Finally, relators contend that the board should have allowed a hearing on the new evidence. Because of our decision, this issue is moot. A new hearing will be required on remand.

DECISION

The decision of the county board to include a limited debarking condition, based on the scarcity of information provided before January 10, 2006, was arbitrary and capricious.

The alteration of the CUP, based on the consideration of late-arriving information on debarking, did not follow the correct procedure for issuance of an amended CUP.

MFHS is a full party to this action and is entitled to notice of all future proceedings.

We reverse and remand to the Morrison County Board for reconsideration of the application for the conditional use permit.

Reversed and remanded; motion granted in part and denied in part.

      . This court dismissed Block and his wife from the lawsuit because the land has been sold to McDuffee and the Blocks no longer have an interest in it.

      . The letter, reproduced in full later in this opinion, states: "[W]e encourage the use of barking collars in place of surgical debarking. While we realize that this is ultimately your choice, not ours, we will not defend your use of the surgical practice to any or all inquirers.”

      . This court issued an order questioning jurisdiction as to MFHS and required the parties to submit informal memoranda addressing the standing issue.

      . The Nelson relators' argument that the county board's letter of February 7 to McDuf-fee constitutes a modification of the CUP will be addressed later in this opinion.


source: Caselaw Access Project

author: DIETZEN, Judge. LANSING, Judge

license: Public Domain

text:
    Aja BJERKE, Appellant, v. Suzette E. JOHNSON, Respondent, Kenneth D. Bohlman, Defendant.
    No. A06-117.
    Court of Appeals of Minnesota.
    Feb. 13, 2007.

      Dennis Patrick Moriarty, Kevin J. Wetherille, Jaspers, Moriarty & Walburg, P.A., Shakopee, MN, for appellant.
    John M. Riedy, Jorun Groe Meierding, Maschka, Riedy & Ries, Mankato, MN, for respondent.
    Eric Olson, Appelman & Olson, P.A., Minneapolis, MN, for defendant.
    Considered and decided by KALITOWSKI, Presiding Judge; LANSING, Judge; and DIETZEN, Judge.
   OPINION

DIETZEN, Judge.

This appeal arises out of the sexual abuse of appellant Aja Bjerke, a teenager, by defendant Kenneth Bohlman. Bohlman was the live-in boyfriend of respondent Suzette Johnson, the woman to whom Bjerke had been entrusted by her parents. Bjerke appeals from summary judgment dismissing her negligence claim against Johnson, arguing that the district court erred by concluding that Johnson did not have a duty to protect her from Bohlman’s criminal acts. Bjerke also challenges an order dismissing her negligence claim on the ground that she assumed the risk of her injuries as a matter of law and a prior order granting Johnson’s request for a bifurcated trial and denying Bjerke’s motion to amend her complaint to include a punitive-damages claim. We affirm in part, reverse in part, and remand.

FACTS

In June 2002, Bohlman was charged with five counts of criminal sexual conduct, with each count covering a specific period of time. Also, appellant Aja Bjerke filed a civil suit against Johnson and Bohlman, alleging, inter alia, that between the fall of 1998 and the spring of 2001, Johnson assumed a legal duty to protect her from physical and sexual abuse; and that during that time period, when appellant was a minor, Bohlman repeatedly physically and sexually assaulted her at various locations, including at Johnson’s residence in rural Lake Crystal.

Johnson owns and operates a horse business known as Island Farm located near Lake Crystal, which consists of a house, barns, and other outbuildings on about 14 1/2 acres of land. Johnson practices as an attorney in the Lake Crystal-Mankato community. Kenneth Bohlman worked as the manager of a local drug store. and began living with Johnson in, the house on Island Farm sometime in 1983 or 1984.

From 1972 through 1987, Johnson was approved by the Hennepin County Vocational School and the University of Minnesota at Waseca to provide an 8-12 week training experience for students enrolled in horse-management classes. The students, who ranged in age from 18 to 21, would learn the horse business and live at Island Farm. Additionally, Johnson provided riding lessons for 13- to 18-year olds, who would spend up to a week or two at the farm.

During the relevant time period, Johnson worked full time as an attorney. Bohl-man and his assistant, Andrea Pidde, operated a separate business at Island Farm providing horseback-riding lessons to the public. Johnson testified that Bohlman had heart valve surgery in August 1994, and in early 1995, she became aware that he was impotent. She testified that she had not had a sexual relationship with Bohlman since 1995 and that they began sleeping in separate bedrooms in 1999.

Bjerke met Bohlman at a horse show in 1995, and began taking horseback-riding lessons from him. On those occasions, her parents would bring her and her horse to Island Farm for the lessons, During the summer of 1997, Bjerke hail her horse stabled at Island Farm so that her parents would not be required to transport the horse back and forth for each riding lesson. At that time, Johnson asked her parents if Bjerke might enjoy spending a week or so at Island Farm, as other minors had in years past. Bjerke ‘ spent about two and one-half weeks at Island Farm that summer. During the summers of 1998 and 1999, Bjerke stayed at Island Farm and received horseback-riding lessons from Bohlman and Pidde, and in the fall of each year, she returned to New Prague to reside with her parents and attend school. During the school year, she visited Island Farm on weekends and occasionally attended horse shows with Johnson, Bohlman, and Pidde. In, April 2000, Bjerke began staying full time at Island Farm, where she resided until approximately October 2001.

During Bjerke’s stay at Island Farm, Johnson understood her role was to provide Bjerke with room and board. Although Bjerke did not pay for staying at Island Farm, she did perform chores, which included feeding the horses and cleaning the stalls. She also attended horse shows with Johnson, Bohlman, and Pidde, together with any other children who had horses at Island Farm.

In October 2001, Bjerke called her father and stated that she was afraid of Bohlman and that he had been physically violent with her. A few days later, Steven Bjerke contacted Johnson and made arrangements to pick up Bjerke’s belongings. While at the farm, he discovered that some of Bjerke’s personal belongings, including items of her clothing and school books, were in Bohlman’s room and confronted Johnson as to what was going on. Johnson made no oral response to the question. Additional evidence showed that Bohlman had Bjerke’s course schedule, check blanks, graduation cards, and a pair of Bjerke’s underwear in his room.

In October 2004, Bohlman was convicted of three counts of criminal sexual misconduct and acquitted of the two remaining, counts. The convictions related to conduct that occurred before April 20, 1999, which was Bjerke’s 16th birthday. At the criminal proceeding, Bjerke testified that Bohl-man physically and sexually abused her at Island Farm when she was 14 years old and continued until she left the farm in October 2001. Appellant’s conviction and sentence were affirmed by this court. State v. Bohlman, No. A05-207, 2006 WL 915765 (Apr. 11, 2006), review denied (Minn. July 19, 2006).

In the civil proceeding, the district court ruled on a number of pretrial motions. Specifically, the court granted Bjerke’s motion to amend her complaint to request punitive damages against Bohlman, but denied the same motion against Johnson, denied Bjerke’s motion to strike the defense of comparative negligence, and granted Johnson’s motion for separate trials against Johnson and Bohlman. In September 2005, Johnson moved for summary judgment, arguing that there was no duty owed to Bjerke and that Bjerke voluntarily assumed the risk of her injuries. Appellant opposed the motion, arguing that Johnson owed her a legal duty to protect her from sexual abuse by Bohlman.

Following a hearing, the district court granted Johnson’s motion for summary judgment. The district court then ordered entry of a final partial judgment. This appeal followed.

ISSUES

1. Did the district court err by concluding as a matter of law that Johnson did not have a duty to protect Bjerke from Bohl-man’s sexual abuse?

2. Did the district court err by concluding as a matter of law that Bjerke assumed the risk of her injuries?

3. Did the district court abuse its discretion by granting Johnson’s motion for a bifurcated trial and by denying Bjerke’s motion to amend her complaint to include a punitive-damages claim?

ANALYSIS

I.

Aja Bjerke challenges the district court’s grant of summary judgment dismissing her negligence claim against respondent Suzette Johnson, arguing that genuine issues of material fact remain as to whether Johnson negligently failed to protect her from respondent Kenneth Bohlman’s physical and sexual abuse. We agree.

Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). When reviewing a summary judgment, this court examines whether genuine issues of material fact remain for trial and whether the district court properly applied the law. Wartnick v. Moss & Barnett, 490 N.W.2d 108, 112 (Minn.1992). To raise a genuine issue of material fact, the party opposing summary judgment must present only sufficient evidence to support its claims; substantial evidence is not required. Schroeder v. St. Louis County, 708 N.W.2d 497, 507 (Minn.2006). But evidence that creates merely a “metaphysical doubt as to a factual issue and that is not sufficiently probative with respect to an essential element of [the non-moving party’s] case to permit reasonable people to draw different conclusions” is insufficient to raise a genuine issue of material fact. State Farm Fire & Cas. v. Aquila, Inc., 718 N.W.2d 879, 886-87 (Minn.2006). Bearing these standards in mind, we review the evidence de novo in a light most favorable to the non-moving party, and we resolve “[a]ll doubts and factual inferences ... in favor of the non-moving party.” Ingram v. Syverson, 674 N.W.2d 233, 235 (Minn.App.2004).

Summary judgment dismissing a negligence action is appropriate when the record lacks evidence of a duty of care, a breach of that duty, an injury, or proximate causation. Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn.1995). Whether a duty of care exists is ordinarily an issue that the court determines as a matter of law. Larson v. Larson, 373 N.W.2d 287, 289 (Minn.1985).

Generally, a person has no duty to protect another from a third party’s criminal acts. Delgado v. Lohmar, 289 N.W.2d 479, 483 (Minn.1979); Restatement (Second) of Torts §§ 314, 315 (1965). A duty to protect arises, however, when the plaintiff has a special relationship to the defendant and the harm is reasonably foreseeable. H.B. ex. rel. Clark v. Whittemore, 552 N.W.2d 705, 707 (Minn.1996); Erickson v. Curtis Inv. Co., 447 N.W.2d 165, 168 (Minn.1989). The existence of a special relationship is a threshold question. Errico v. Southland Corp., 509 N.W.2d 585, 587 (Minn.App.1993), review denied (Minn. Dec. 14, 1993).

A. Special Relationship

Bjerke argues that she had a special relationship with Johnson under Restatement (Second) of Torts §§ 314A and 324A (b) (1965). We conclude that a special relationship existed under section 324A but not under section 314A.

A special relationship exists under section 314A when a person voluntarily takes “custody of another person under circumstances in which that other person is deprived of normal opportunities for self-protection.” Harper v. Herman, 499 N.W.2d 472, 474 (Minn.1993) (citing Restatement (Second) of Torts § 314A). The plaintiff in a section 314A relationship is “typically in some respect particularly vulnerable and dependent upon the defendant who, correspondingly, holds considerable power over the plaintiffs welfare.” Id. at 474 n. 2 quoting W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 56, at 374 (5th ed.1984).

Johnson voluntarily took custody of Bjerke for purposes of section 314A. Bjerke’s parents placed her in Johnson’s care, and Johnson admits that she agreed to provide Bjerke with room and board and to protect her from injury. But the custodial arrangement did not deprive Bjerke of normal opportunities for self-protection. The self-protection element of the rule is directed toward individuals who are in some way unable to summon help by virtue of the custody arrangement. See Restatement (Second) of Torts § 314A illus. 6-7 (describing duty owed by jailors and teachers to inmates and small children, respectively). Bjerke, who was a teenager when the harm occurred, was not unable to summon help by virtue of the custody arrangement. Unlike a prisoner or a small child, Bjerke had the same opportunities for self-protection under Johnson’s custody as she did under her parents’ custody. She could just as easily have reported the abuse under Johnson’s custody, for example, as she could have done under her parents’ custody. A special relationship therefore did not exist under section 314A.

Section 324A imposes liability when a defendant undertakes for another, gratuitously or for consideration, to perform a duty owed by the other to a third person. Erickson, 447 N.W.2d at 170 (adopting section 324A). The extent of the duty owed under section 324A is defined by the extent of the undertaking. See id. (concluding that because security firm undertook to patrol entire ramp, the firm had a duty to all patrons); McGee v. Chalfant, 248 Kan. 434, 806 P.2d 980, 985 (1991) (finding that friends who gave intoxicated motorist a ride to place where he left his automobile did not undertake to protect his safety or the safety of others).

When Bjerke’s parents entrusted her to Johnson, Johnson agreed to shelter and feed Bjerke and to protect her from the unreasonable risk of harm. By accepting the entrustment Johnson thus undertook to perform duties Bjerke’s parents otherwise owed Bjerke. See Erickson, 447 N.W.2d at 170 (holding that security firm hired by parking-ramp owner had duty to protect not only owner’s patrons but also patrons of company that leased part of ramp). Johnson thereby entered into a special relationship with Bjerke under section 324A.

B. Foreseeability

The scope of the duty to protect that a special relationship imposes is delineated by the harm that is foreseeable under the circumstances. Lundgren v. Fultz, 354 N.W.2d 25, 28 (Minn.1984) (“The risk reasonably to be perceived defines the duty to be obeyed.”). When considering whether a risk is foreseeable, “courts look at whether the specific danger was objectively reasonable to expect, not simply whether it was within the realm of any conceivable possibility.” Whiteford v. Yamaha Motor Corp., 582 N.W.2d 916, 918 (Minn.1998). Speculative risks are insufficient to create a duty of care. Larson, 373 N.W.2d at 288.

A criminal act by a third party is foreseeable only when a reasonably prudent person could have anticipated that the act was likely to occur. K.L. v. Riverside Med. Ctr., 524 N.W.2d 300, 302 (Minn.App.1994), review denied (Minn. Feb. 3, 1995). The foreseeability of a sexual assault often hinges on whether the defendant was aware of prior similar behavior by the third party. Id. Indeed, “sexual assault ... will rarely be deemed foreseeable in the absence of prior similar incidents.” Id. (affirming directed verdict in hospital’s favor on claim that it negligently failed to protect patient from sexual assault, reasoning that record contained no evidence that hospital knew assailant had been behaving suspiciously in recent days or had behaved suspiciously in the past); Doe v. Goff, 306 Ill.App.3d 1131, 240 Ill.Dec. 190, 716 N.E.2d 323, 326 (1999) (holding that Boy Scouts of America (BSA) could not have foreseen risk that boy scout would be molested by volunteer at camping trip when, at time of molestation, BSA “had no reason to believe that [the volunteer], or anyone at the camp, was predisposed to commit sexual abuse. [The volunteer] was a pediatrician who had no criminal record and no known propensity to be a child molester. Further, there was no evidence to suggest that anyone at the camp [had] committed abuse in the past, had any type of criminal record, or was predisposed to commit abuse.”); cf. Golden Spread Council, Inc. v. Akins, 926 S.W.2d 287, 290 (Tex.1996) (holding that sexual abuse of boy scout by scoutmaster was foreseeable because regional council had recommended scoutmaster despite complaints that scoutmaster was “messing with” some boy scouts and concerns that the complaints might be serious). Courts may decide the foreseeability issue as a matter of law when the issue is clear, but close foreseeability questions are for the jury. K.L., 524 N.W.2d at 302.

The record contains no evidence that Bohlman had a criminal record or that he had been involved in previous incidents of sexual abuse of which Johnson was aware. Bjerke argues, nonetheless, that Johnson should have anticipated the risk of sexual abuse based on four separate incidents.

The first incident occurred during the summer of 1997, when Bjerke was 14 years old. Johnson saw Bjerke running her fingers through Bohlman’s hair while they sat on a couch. Johnson admits that the conduct “didn’t look right” to her and caused her to keep her “eyes open.” She confronted Bohlman and asked him to talk to Bjerke about the inappropriateness of her behavior.

The second incident occurred approximately two years later, when a social worker who was a friend of Johnson’s told Johnson that Bjerke exhibited “clingy” behavior around Bohlman and seemed infatuated with him. But the social worker did not express concern that Bjerke was in danger of abuse. See Minn.Stat. § 626.556, subd. 3 (2006) (requiring certain professionals, including social workers, to report known or suspected incidents of child abuse). The third incident took place in 2000, when Johnson saw Bjerke jump on Bohlmaris lap during a horse show at Island Farm.

But absent a criminal record, or a known propensity to molest children, we conclude that these incidents would not have caused a reasonable person to conclude that Bohlman was likely to molest Bjerke, particularly when Bjerke initiated the contact and Johnson was under the impression that Bohlman had been impotent since 1995. Instead, a reasonable person could have concluded on this evidence that Bjerke’s behavior was indicative of a “school-girl-like crush.”

The final incident, however, which occurred in January 2001, when Bjerke was 17, is sufficient to raise a genuine issue of material fact as to whether the risk of sexual abuse was reasonably foreseeable. Although Johnson denies it, there is evidence in the record that in January 2001 Johnson told a neighbor that she had to leave the house because Bohlman and Bjerke “were fooling around on the couch, and it was more than what a father-daughter should be doing and it made her uncomfortable, it was too sexual and she left.”

The record does not indicate what specific conduct constituted “fooling around,” but the conduct Johnson observed was sexual and sufficiently inappropriate to make her uncomfortable and cause her to leave her own house. And when Bjerke’s father’s found some of Bjerke’s personal belongings, including a pair of underwear, in Bohlman’s bedroom, he confronted Johnson. Johnson did not respond. On this record, a jury could reasonably conclude that Bjerke and Bohlman were sharing a room and that Johnson knew or should have known about it. See Sylvester v. Northwestern Hosp. of Minneapolis, 236 Minn. 384, 53 N.W.2d 17 (1952) (stating that knowledge that patient had habit of wandering on hospital grounds while intoxicated sufficient to find hospital liable for assault of another patient, in light of “experience of mankind” that intoxication causes people to become a hazard to others).

Viewing the evidence in the light most favorable to Bjerke, we conclude that Bjerke submitted sufficient evidence to raise a genuine issue of material fact as to whether the risk of abuse was reasonably foreseeable. The totality of the circumstances in this case (including the conduct Johnson observed, the discovery of Bjerke’s personal belongings in Bohlman’s room, Bjerke’s effort to conceal the relationship, Johnson’s understanding that Bohlman was impotent, and the lack of a known history of similar incidents of abuse) would permit reasonable people to draw different conclusions about the foreseeability of the harm. Because there are viable arguments on both sides regarding whether the risk of sexual abuse was foreseeable, the foreseeability issue is not susceptible to resolution as a matter of law and must be submitted to the jury. See Laska v. Anoka County, 696 N.W.2d 133, 140 (Minn.App.2005), review denied (Minn. Aug. 16, 2005) (concluding that foreseeability issue was not “so clear as to be susceptible to resolution as a matter of law” where both parties presented “opposing and meritorious arguments concerning whether a foreseeable risk to [an infant who died while napping on an adult bed] was objectively reasonable”).

Accordingly, we reverse the district court’s grant of summary judgment dismissing Bjerke’s negligence claim and remand.

II.

Bjerke next argues that the district court erred by concluding that her negligence claim against Johnson was barred as a matter of law because she assumed the risk of her injuries.

Unless the evidence is conclusive, whether a person assumed the risk of injury is a question for the jury. Schneider v. Erickson, 654 N.W.2d 144, 148 (Minn.App.2002). Minnesota law recognizes two forms of assumption of risk. Id. at 148. Primary assumption of risk applies when a plaintiff “voluntarily enters into a relationship in which the plaintiff assumes well-known, incidental risks.” Id. By voluntarily entering into the relationship, the plaintiff in effect “consents to look out for himself and [to] relieve the defendant of his duty [to protect him from the assumed risks].” Id. The doctrine of-primary assumption of risk is an absolute bar to recovery. Id.

Secondary assumption of risk, by contrast, is a form of contributory negligence that applies when a plaintiff “voluntarily encounters a known, appreciated risk without an attendant manifestation ... that he consents to relieve the defendant of his duty.” Armstrong v. Mailand, 284 N.W.2d 343, 351 (Minn.1979). Unlike primary assumption of risk, secondary assumption of risk is not an absolute bar to recovery; instead, “like any other form of contributory negligence, [secondary] assumption of risk must be apportioned under [the] comparative negligence statute.” Springrose v. Willmore, 292 Minn. 23, 24-25, 192 N.W.2d 826, 827 (1971).

The essential elements of primary and secondary assumption of risk are the same — the plaintiff must have knowledge of the risk, must appreciate the risk, and must choose to take the risk despite having the opportunity to avoid it. Schneider, 654 N.W.2d at 149. The distinguishing element between primary and secondary assumption of risk is the plaintiffs manifestation, of consent to relieve the defendant of a duty he might otherwise have. Iepson v. Noren, 308 N.W.2d 812, 815 (Minn.1981); Armstrong, 284 N.W.2d at 351.

Generally, a victim’s consent to criminal conduct bars recovery in a tort action based on such conduct. See Restatement (Second) of Torts § 892A(1) (1965) (providing that “[o]ne who effectively consents to conduct of another intended to invade his interests cannot recover in an action of tort for the conduct or for harm resulting from it”). When the legislature criminalizes conduct to protect a certain class of persons, however, and the purpose of the legislation is to protect those persons against the conduct irrespective of their consent, consent to the conduct by a member of the protected class will not bar recovery in tort. Restatement (Second) of Torts § 892C(2) (1965). The required legislative purpose to protect a particular person despite his or her consent “will ordinarily be found when it is apparent that the statute is intended for the protection of a class of persons who, by reason of their immaturity, inexperience or lack of judgment, are unable to protect themselves against the conduct to which they are likely to consent.” Id. cmt. e.

In criminal cases, consent is not a defense to a charge of sexual abuse of a.child under the age of 16 — a crime often referred to as statutory rape. See, e.g., Minn.Stat. § 609.342, subd. 1(b) (2006) (providing that consent is not defense to charge of first-degree criminal sexual conduct when victim is between ages of 13 and 16 and perpetrator is at least 48 months older than victim). The preclusion of consent as a defense to statutory rape “reflects the feeling of society in general that sexual contact by adults with children under 16 is reprehensible whether or not the child consents, because at that age, the child should be deemed incapable of consenting.” State v. Steinbrink, 297 N.W.2d 291, 293 (Minn.1980) (emphasis added). "Whether for civil-liability purposes a child under the age of consent should also be deemed legally incapable of consenting to statutory rape is a question of first impression in Minnesota.

A majority of jurisdictions adopt the Restatement’s position and exclude consent as a defense in civil actions arising out of statutory rape. See, e.g., Christensen v. Royal Sch. Dist. No. 160, 156 Wash.2d 62, 124 P.3d 283, 286 (2005) (concluding that “notion that minors are incapable of meaningful consent in a criminal law context should apply in the civil arena and command a consistent result”); Wilson v. Tobiassen, 97 Or.App. 527, 777 P.2d 1379 (1989) (concluding that incapacity of minor to consent to sexual acts in criminal cases extends to civil cases). These jurisdictions have reasoned that the enactment of statutes criminalizing sexual activity with minors evidences the legislature’s intent to protect minors from sexual exploitation and that allowing civil defenses premised on a minor’s consent would be inconsistent with such intent. See, e.g., Christensen, 124 P.3d at 286 (noting that “[t]he obvious purpose of [ ] statutes [criminalizing sexual activity with a minor] is to protect persons who, by virtue of their youth, are too immature to rationally or legally consent”); Doe by Doe v. Greenville Hosp. Sys., 323 S.C. 33, 448 S.E.2d 564, 566 (1994) (concluding that general assembly’s determination that children under age of consent are incapable of consenting to sexual battery extends to civil context).

A minority of jurisdictions, on the other hand, allow consent as a defense in civil actions arising out of statutory rape. See, e.g., Tate v. Bd. of Educ. of Prince George’s County, 155 Md.App. 536, 843 A.2d 890, 901 (2004) (concluding that “a minor’s consent is relevant for purposes of determining civil liability”); Michelle T. by Sumpter v. Crozier, 173 Wis.2d 681, 495 N.W.2d 327, 329 (1993) (holding that evidence of victim’s consent to inappropriate touching defeated civil-battery charge). These jurisdictions based their determination on principles of fairness, the belief that minors acquire the capacity to consent to different types of conduct at different stages in their development, the broad range of situations in which minors are deemed to be legally capable of consenting, and the difference in purpose between the civil- and criminal-justice systems. See, e.g., Doe by Roe v. Orangeburg County Sch. Dist. No. 2, 335 S.C. 556, 518 S.E.2d 259, 261 (1999) (stating that “[i]t is antithetical to principles of fair trial that one party may seek recovery from another based on evidence it selects while precluding opposing relevant evidence on grounds of prejudice” in allowing defendant to raise plaintiffs consent at damages phase (quotation omitted)); Tate, 843 A.2d at 899 (noting that “[tjhere is no hard-and-fast rule as to the age at which a person attains the capacity to consent to bodily invasions” (quotation omitted)); McNamee v. A.J.W., 238 Ga.App. 534, 519 S.E.2d 298, 302 (1999) (noting that “decisional and statutory law is replete with examples of situations in which a child over the age of 14 is deemed to have the mental capacity of an adult”); Cynthia M. v. Rodney E., 228 Cal.App.3d 1040, 279 Cal.Rptr. 94, 98 (1991) (stating that “to recognize the asserted right to recover would be to permit plaintiff to profit by the wrong to which she voluntarily was a party” (quotation omitted)).

Minnesota has unambiguously declared its strong interest in preventing the sexual abuse of children. See Minn.Stat. § 626.556, subd. 1 (2006) (declaring policy to protect children whose welfare may be jeopardized by sexual abuse). To that end, the legislature has enacted several statutes criminalizing sexual conduct with children under the age of consent irrespective of consent. See Minn.Stat. §§ 609.342-609.345 (2006). Specifically, for children under the age of 16, consent is not available as a defense; and for children at least 16, but less than 18 years of age, consent is also not a defense, subject to certain enumerated statutory exceptions. Thus, the legislature has determined, as a matter of public policy, that consent is not available as a defense in cases involving children under the age of 16 who are abused by a person at least 48 months older and children between the ages of 16 and 18 who are abused by a person in a position of authority or a person with whom they have a significant relationship.

The statutes are based on society’s notion that a child under the age of consent lacks the judgment, maturity, and sophistication necessary to freely agree to engage in sexual conduct with an adult. See Minn.Stat. § 609.341, subd. 4 (2006) (defining consent as “words or overt actions by a person indicating a freely given present agreement to perform a particular sexual act” (emphasis added)); Steinbrink, 297 N.W.2d at 293; see also State v. Krotzer, 548 N.W.2d 252, 256 (Minn.1996) (Coyne, J., dissenting) (stating that statutory rape “is based on recognition of the fact that young girls and boys lack both judgment and the understanding- of the possible long-term consequences of their actions so that they are incapable of giving meaningful consent to sexual intercourse,” while disagreeing with majority on other grounds), abrogated by State v. Lee, 706 N.W.2d 491 (Minn.2005).

In a case that is instructive even though not entirely parallel, this court concluded that the doctrine of absolute liability precludes affirmative defenses when the legislature enacts a statute “to protect a limited class of persons from their own inexperience, lack of judgment, or inability to protect themselves or to resist pressure, or tendency toward negligence.” Thelen v. St. Cloud Hosp., 379 N.W.2d 189, 193 (Minn.App.1985) (quotation omitted). The Thelen court construed the Minnesota Vulnerable Adult Act as precluding the defenses of assumption of risk and contributory negligence in an action for damages resulting from failure to report the abuse of a vulnerable adult. Id. The court noted that because of their disabilities, vulnerable adults were more likely to engage in behavior that would be regarded as contributory negligence or assumption of risk if engaged in by a non-vulnerable adult. Accordingly, if that behavior were allowed as a defense in cases arising under the act, “the civil liability imposed [by the Act] would be a nullity.” Id. at 194 (quotation omitted).

Here, too, the clear intent of the legislature in enacting statutes criminalizing sexual conduct with children under the age of 16, irrespective of consent, and with children between the ages of 16 and 18 who are abused by a person in a position of authority or a person with whom they have a significant relationship, was to protect children from being sexually exploited as a result of their inexperience, lack of judgment, inherent curiosity about sex, and inability to resist pressure or protect themselves. As a result of their youth and inexperience, minors are more likely to engage in sexual conduct that would be construed as assumption of risk or contributory negligence if engaged in by an adult. Thus, to allow assumption of risk as a defense in a civil action would not only be inconsistent with the legislature’s commitment to the protection qf children from sexual exploitation but would also render civil liability a nullity, particularly in cases involving teenagers.

We observe that at the time of the fourth incident, involving Bohlman and Bjerke “fooling around on the couch,” Bjerke was 17 years old- and, therefore, the categorical ban against consent as a defense to statutory rape does not apply. See Minn.Stat. § 609.342. But under the criminal statute, consent is unavailable as a defense when the perpetrator is in a position of authority over the complainant or has a significant relationship with her. Here, the parties have not raised the issue of whether Bohlman was in a position of authority over Bjerke or had a significant relationship with her. Thus, we conclude that assumption of risk may be available as a defense to claims arising from conduct that occurred after Bjerke turned 16, but before she turned 18, if the factfinder determines that Bohlman was not in a position of authority or had a significant relationship with Bjerke. On this record, we are unable to conclude as a matter of law that assumption of risk is not available as to the fourth incident.

For the same reasons, we conclude that secondary assumption of risk is not a defense in cases involving children under the age of 16, and has limited availability for children who are at least 16, but not yet 18, at the time of the sexual conduct. We are persuaded that, as a matter of public policy, a person under the age of consent lacks the judgment - and maturity necessary to fully appreciate the danger inherent in engaging in sexual relations with an older person.

We thus see no reason not to apply the criminal-law presumption that minors are legally incapable of consenting to sexual conduct to civil cases. Accordingly, we conclude that the doctrines of primary and secondary assumption of risk, which are premised on the victim’s consent or appreciation of the risk of harm, do not preclude recovery in actions arising from sexual conduct.

III.

Bjerke also challenges the district court’s order granting Johnson’s request for a bifurcated trial of the claims against her and Bohlman and denying Bjerke’s request to amend her complaint to add a punitive-damages claim against Johnson. Although these are not independently ap-pealable orders, we choose to address them in the interest of justice. Minn. R. Civ.App. P. 103.04.

A district court has wide discretion to grant separate trials, and its decision will not be overturned absent a clear abuse of that discretion. McGuire v. C & L Restaurant, Inc., 346 N.W.2d 605, 614 (Minn.1984). A motion for a bifurcated trial is appropriate when it furthers convenience or avoids prejudice. Minn. R. Civ. P. 42.02. Bjerke argues that the district court abused its discretion because the interrelatedness of the issües makes two trials inconvenient, and bifurcation does not avoid prejudice because the evidence of Bohlman’s abusive conduct will undoubtedly be heard in the damages phase of Johnson’s trial. The district court found that the issues were not interrelated because the claims against Johnson are for negligence, and those against Bohlman are for intentional torts. Also, the district court believed that a combined trial could expose Johnson to “undue prejudicial effect.” We decline to say that these findings are improper.

As with a motion to bifurcate trials, we review an order denying a motion to amend a complaint for abuse of discretion. Baertsch v. Minn. Dep’t of Revenue., 518 N.W.2d 21, 26 (Minn.1994). When making a motion to add a claim for punitive damages, the moving party must present prima facie evidence that clearly and convincingly shows the defendant’s “deliberate disregard” for the safety of others. Minn.Stat. §§ 549.191, 549.20 (2006); McKenzie v. N. States Power Co., 440 N.W.2d 183, 184 (Minn.App.1989). The district court denied Bjerke’s motion to add a claim for punitive damages against Johnson because Bjerke’s supporting affidavits did not make the requisite prima facie showing. Our review of these affidavits leads us to conclude that there is evidence of negligence sufficient for consideration by a jury, but not of deliberate disregard by Johnson. A showing of negligence is insufficient to support a claim for punitive damages, thus the district court did not abuse its discretion. See McKenzie, 440 N.W.2d at 184 (rejecting evidence of negligence as evidence of willful indifference).

DECISION

Because Bjerke and Johnson had a special relationship under Restatement (Second) of Torts § 324A (1965) and genuine issues of material fact remain as to whether Bohlman’s sexual abuse of Bjerke was foreseeable, the district court erred by granting summary judgment to dismiss Bjerke’s negligence claim against Johnson. Because for criminal-liability purposes a person under the age of consent lacks the capacity to consent to underage sexual contact, assumption of risk is not an available defense in a civil action for damages arising out of such contact. Children under the age of 16 who are abused by a person 48 months older and children between the ages of 16 and 18 who are abused by a person in a position of authority are deemed to be under the age of consent. The district court did not abuse its discretion by granting Johnson’s motion for a bifurcated trial and denying Bjerke’s motion to amend her complaint to add a punitive-damages claim.

Affirmed in part, reversed in part, and remanded.

LANSING, Judge

(concurring specially).

On the facts presented in this appeal, Aja Bjerke has established that she had a special relationship with Suzette Johnson when she went to live on Johnson’s farm in 1998 when she was 15 years old. On the basis of that special relationship, together with the facts supporting foreseeability, Bjerke has established a triable issue on whether Johnson had a duty to protect Bjerke from sexual abuse by Johnson’s boyfriend, Kenneth Bohlman, which Bjerke alleges occurred between 1998 and 2001.

Bjerke has also demonstrated that the district court erred by concluding as a matter of law that Bjerke assumed the risk of the injuries she sustained as a result of the sexual abuse. Minnesota’s statutory rape laws are based on the firmly established principle that a child who is under the age of 16 is incapable of consenting to sexual contact with adults. State v. Steinbrink, 297 N.W.2d 291, 293 (Minn.1980). Criminal statutes further establish that children between the ages of 16 and 18 are deemed incapable of consenting to sexual contact with adults if that adult has a significant relationship with or is in a position of authority over the child. Minn. Stat. § 609.344, subd. 1(e)-(f) (2006). The public policy underlying these principles recognizes that children in their mid-teens are susceptible to sexual exploitation because of their inexperience and lack of judgment, which makes them unable to resist external pressures, especially when the pressure is exerted by adults they know and trust, or to whom they are subordinate. See State v. Krotzer, 548 N.W.2d 252, 256 (Minn.1996) (Coyne, J., dissenting) (noting minors’ inability to appreciate potential long-term consequences of sexual conduct), abrogated by State v. Lee, 706 N.W.2d 491 (Minn.2005). Thus a defendant in a civil action should not be permitted to raise assumed risk as a defense against a child under the age of 16, and should only be permitted to raise the defense against a child between the ages of 16 and 18 if the defendant was not in a position of authority over the child and did not have a significant relationship with the child.

The majority attaches significance to the fact that Bjerke was 17 years old at the time of the fourth incident and hinges the availability of the assumed-risk defense on whether Bohlman was in a position of authority at the time. That analysis is incomplete because it does not take into account the facts that establish that Bohl-man had a significant relationship with Bjerke. See Minn.Stat. § 609.341, subd. 15(3) (2006) (stating significant relationship includes adult who resides intermittently or regularly in same dwelling as complainant); State v. Sebasky, 547 N.W.2d 93, 100 (Minn.App.1996) (finding significant relationship when complainants stayed at defendant’s apartment for periods of two to six days), review denied (Minn. June 19, 1996). On these facts, the assumption-of-risk defense is unavailable to Johnson.

For these reasons I would reverse the district court’s summary judgment dismissing Bjerke’s negligence claim. Because the district court acted within its discretion in bifurcating for trial the claims against Bohlman and Johnson, I would affirm that ruling. I would also affirm the ruling on the punitive-damages motion based on the current record.

      . Although a woman who lived at Island Farm for 11 consecutive months in 1987-88 testified that Bohlman sexually abused her, there is no evidence that Johnson was ever made aware of the alleged abuse. The woman, who was 14 at the time, stated that the abuse took place in the room Johnson and Bohlman shared, that she kept letters in which she detailed the incidents of abuse, and that she believed that the letters, which she kept on a table by her bed, had been read. But the record contains no evidence that Johnson read the letters, that the young woman ever discussed the incidents of abuse with Johnson, or that Johnson otherwise became aware of the abuse.